COURT FILE NO.: 07-CV-338062 PD2

DATE: 20190328

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NALEAHA JONES-CARTER, a minor by her Litigation Guardian SHYLENA JONES, SHYLENA JONES and BRAD CARTER

Plaintiffs

• and -

ALLAN STEPHEN WARWARUK and WINDSOR REGIONAL HOSPITAL –METROPOLITAN CAMPUS

Defendants

Barbara MacFarlane and Joni Dobson, for the Plaintiffs

Mark Veneziano and Kelly Hayden, for the Defendants

HEARD at Toronto, Ontario: January 22-25, 28-30, 2019

Michael G. Quigley J.

Reasons for Decision

I. Overview................................................................................................................................ 2

II. Factual Background and Evidence....................................................................................... 3

A. Evidence for the Plaintiffs............................................................................................... 3

1. Ms. Shylena Jones........................................................................................................ 4

2. Mr. Brad Carter............................................................................................................ 8

3. Ms. Diane Warner...................................................................................................... 10

4. Dr. Thomas Miller..................................................................................................... 11

5. Dr. Savas Menticoglou.............................................................................................. 13

B. Evidence for the Defendants......................................................................................... 24

1. Dr. Allan Warwaruk................................................................................................... 24

2. Dr. Jonathan Barrett................................................................................................... 29

III. The Issues and Position of the Parties......................................................................... 39

IV. Standard of Care and Burden of Proof......................................................................... 41

V. Did Dr. Warwaruk Breach the Standard of Care?............................................................ 45

A. Was Supra-Pubic Pressure applied in breach the Standard of Care?......................... 48

B. Did Dr. Warwaruk Apply Excessive Traction?............................................................ 52

1. The medical evidence................................................................................................ 54

2. The expert evidence................................................................................................... 57

3. Dr. Warwaruk’s evidence.......................................................................................... 60

C. Conclusion...................................................................................................................... 61

VI. Disposition..................................................................................................................... 64

I. Overview

[1] Naleaha Jones-Carter was born on December 30, 2004 in Windsor Ontario. She is now fourteen. When she was born, she sustained a partial but permanent brachial plexus injury. That injury to the nerves flowing from the vertebrae of her cervical spine, has left her partially disabled in the use of her left shoulder and arm. This injury was diagnosed shortly after her birth. With the passage of time, therapy, and surgical interventions, there has been some improvement in the use of at least part of her arm over the years. However, Naleaha continues to be affected by the injury she sustained at birth, and she will never have full usage or full development of her left arm, as she does with her right

[2] The question in this negligence action is the liability of Dr. Allan Warwaruk, the obstetrician who delivered her. Naleaha, her mother, Shylena Jones, and her father, Brad Carter, all claim damages against Dr. Warwaruk. They say he failed to meet the standard of care in his delivery of Naleaha Jones-Carter, that he was negligent, and that her damages would not have arisen but for his conduct.

[3] This action was originally commenced against Dr. Warwaruk and the Windsor Regional Hospital as co-defendants, but the action against the hospital has been dismissed. Further, the parties have settled the damages that the Plaintiffs will be entitled to receive if they succeed in establishing liability.

[4] The issue I am called upon to determine is whether Dr. Warwaruk’s conduct, in delivering Naleaha Jones-Carter, fell below the standard of care that could reasonably be expected of a specialist in Obstetrics and Gynecology, practicing in Windsor Ontario in 2004, and if it did, whether that failure was the cause of her partial but permanent brachial plexus injury.

[5] For the reasons that follow, I find:

(i) That there was common ground between Drs. Menticoglou and Barrett as to the standard of care that could reasonably be expected of a specialist in Obstetrics and Gynecology practising in Windsor, Ontario in 2004, but they entirely disagreed whether Dr. Warwaruk met that standard;

(ii) That there was extensive disagreement between Dr. Menticoglou and Dr. Barrett’s about (i) what the standard of care “should be”; and (ii) whether the extensive scientific literature adduced was “authoritative” and what conclusions could be drawn from that literature. I address those issues in these reasons, but find they are irrelevant to liability because they focus on what the standard should be, rather than what it was, and frankly, what it remains to this day;

(iii) That Dr. Allan Warwaruk’s conduct in delivering Naleaha Jones-Carter did not fall below, but instead met all of the requirements of the standard of care that could reasonably have been expected of a specialist in Obstetrics and Gynecology practicing in Windsor, Ontario in 2004; and

(iv) That on the evidence presented at this trial, the Plaintiffs’ have not satisfied their burden of proof to show that Dr. Warwaruk’s conduct was the “but for” cause of Naleaha’s permanent brachial plexus injury.

[6] As a result, I have concluded that there is no nexus engaging legal liability that can be found on a balance of probabilities standard between Dr. Warwaruk’s conduct and the partial but permanent brachial plexus injury sustained by Naleaha Jones-Carter at birth. The action is dismissed.

II. Factual Background and Evidence

A. Evidence for the Plaintiffs

[7] The lay witnesses at this trial were Naleaha’s mother, Shylena Jones, her father Brad Carter, and Ms. Jones’ aunt, Diane Warner. Mr. Carter and Ms. Warner were present with Ms. Jones in the delivery room when Naleaha was born. Each of them gave evidence at discovery in 2008 and testified ten years later at this trial about their recollections of Naleaha’s birth.

[8] The Plaintiffs called two expert witnesses, Dr. Thomas Miller, an expert in Clinical Neurophysiology and brachial plexus injuries, and Dr. Savas Menticoglou, an obstetrician and gynecologist from The University of Manitoba.

[9] As Naleaha’s treating physician, Dr. Miller gave expert evidence on the progress and prognosis of her brachial plexus injury from the time of her birth to the present. He testified why her brachial plexus injury is now permanent, even if only partial.

[10] Dr. Menticoglou gave his opinion relative to the standard of care that could reasonably be expected of a specialist in Obstetrics and Gynecology practising in Windsor, Ontario in 2004. He also testified that in his opinion, Dr. Warwaruk’s conduct failed to meet that standard and that his conduct alone was the cause of Naleaha’s brachial plexus injury.

1. Ms. Shylena Jones

[11] Shylena Jones was born in 1980. She grew up and continues to live in Windsor, Ontario. At the time of this trial, she was 38, but was 24 when she got pregnant with her partner at the time, Brad Carter. They were in a common-law relationship but the pregnancy was not planned. They later had a second child, a boy named Jaylon. Although their relationship ended in 2011, Ms. Jones and Mr. Carter are on good terms, Mr. Carter continues to be involved with his two children, and attended the trial with Ms. Jones.

[12] At the time she became pregnant, Ms. Jones’ family doctor did not deliver babies. He referred her to Dr. Allan Warwaruk, a specialist in Obstetrics and Gynaecology who was well known and had practiced in Windsor for many years. He has now been retired for over ten years. Ms. Jones first visited him on June 15, 2004. Her due date was expected to be December 27, 2004.

[13] Apart from weight gain, Ms. Jones’ pregnancy went well. Dr. Warwaruk saw her regularly at his office between June 15 and December 28, 2004. During that period, she had one ultrasound and learned that the child would be a girl. However, by September, Ms. Jones was gaining weight. Her blood sugar was high. She was diagnosed as having gestational diabetes, but it was not significant enough to require diabetic medication. Ms. Jones visited Dr. Warwaruk in his office for the last time before delivery on December 28, 2004. He decided she should be induced on December 30.

[14] Ms. Jones was admitted to the Windsor Regional Hospital and sent to the delivery floor on the morning of December 30, 2004. Mr. Carter accompanied her. Dr. Warwaruk came to see her just before 9:00 am. He did a vaginal examination, ruptured her membranes (the so-called “breaking of her water”) hooked her up to intravenous, and started to infuse labour and contraction inducing drugs, as well as pain medication. As charted by the maternity nursing staff, she received an epidural anaesthetic by 1:00 in the afternoon. Contractions were increasing in frequency, but Ms. Jones did not feel any pain.

[15] By 1:00, both Mr. Carter and her aunt, Diane Warner, were in the delivery room and remained present, to keep Ms. Jones company as her labour progressed. By 2:15 p.m., Ms. Jones was 7-8 centimetres dilated and the nurses re-positioned her. By 4:15 her cervix was fully dilated. She felt fine during that first phase of delivery. She had intravenous in her arm and a monitor on her stomach to monitor the baby. Mr. Carter left the room a couple of times during the course of her labour, but there were always two nurses present. They told her when she was fully dilated. She said that she felt good.

[16] Dr. Warwaruk came into the room at about 5:30, after being advised that Ms. Jones was ready to deliver. She understood that she was about to give birth. In the time leading up to 5:30, the nurses had been encouraging her to push a few times, and she was able to do so. She was still feeling the benefits of the epidural anesthetic. She had no concerns about the pending delivery.

[17] Ms. Jones remembers Dr. Warwaruk coming into the delivery room, a hospital room with a raised bed equipped with stirrups and an elevated head. Ms. Jones was inclined back on the raised portion of the bed and her feet were in the stirrups at the foot of the bed. It was time for her to give birth. Dr. Warwaruk did not speak of any anticipated concerns. He sat on a stool at the bottom of the bed, in between her legs. He encouraged Ms. Jones to start pushing again as she had contractions. At one point she remembers him standing up and leaning over her a little bit. Naleaha was born twenty minutes later, at 5:50 p.m.

[18] Ms. Jones’ recollection was that it was only Dr. Warwaruk who was directing the pushing, and indeed, she recalled one time when he told her to stop pushing, but she misunderstood and pushed. She does not recall any discussion of any complications before Dr. Warwaruk applied Tucker’s forceps to assist in the delivery. She was unsure who used the forceps, or when. She was not in any distress, but it was during this time that she later understood it became apparent to the doctor that the baby had a shoulder dystocia, that is, that the baby’s anterior shoulder was caught under her pubic bone, her symphysis pubis.

[19] After the forceps were used, Ms. Jones recalled Mr. Carter and Ms. Warner holding her legs back towards her chest and shoulders. They were standing at her shoulders on either side of her. She said she felt exposed as they held her legs back. She later understood that they were assisting to perform what is referred to as a McRoberts maneuver. While her legs were in this position, she was told to push at certain points of time. She was also holding her thighs and bearing down on the baby. Dr. Warwaruk told her when to push.

[20] The next development she recalled was Dr. Warwaruk speaking to the nurses. They each boosted themselves up with a stool or using the side of the delivery bed and got up on the bed on either side of Ms. Jones. They were facing towards the doctor and away from Ms. Jones’ head. She said they started to press down, on the top of her abdomen with hand-over-hand pressure. She said that they were pushing together.

[21] By that point in time, Ms. Jones’ legs had been returned to their earlier position and her feet were back in the stirrups at the foot of the bed. Ms. Jones said the action of the nurses hurt because she was not frozen from the epidural up in the area of her abdomen where she said that they were pushing. She said that the nurses never pushed anywhere else on her belly. She said she could also feel the pressure of pulling at the same time as the nurses were exerting pressure on her abdomen. She later learned that the doctor performed an episiotomy just before the child was delivered. An episiotomy is typically performed during the second stage of labour, when necessary, to quickly enlarge the vaginal opening for the baby to pass through. She said she remembered looking towards Dr. Warwaruk and feeling a ‘pulling’ pressure, just before the baby was delivered.

[22] Ms. Jones was holding her breath. She testified that she believed at that moment that something was wrong. She acknowledged that she had no sense of what was happening, but knew that there was some chaos and commotion in the room. The doctor and the nurses were talking, but she could not hear what was being said. It hurt her as the child was delivered. She was later told that she had blacked out for a short time just before and at the time of the delivery.

[23] Naleaha Jones-Carter was born at 5:50 p.m. Shortly thereafter, she said that Dr. Warwaruk told her that the child’s collarbone might have been “fractured” or “broken” during the delivery, but did not mention any other complications.[^1] Ms. Jones did not see the baby until the next day because the nurses took the newborn child to a different bed and because it appeared she had blacked out. Ms. Jones saw her baby for the first time the next morning.

[24] When Ms. Jones saw Naleaha the next day, she noticed that the infant’s right eye was swollen with a small cut.[^2] More importantly, she noticed that the baby’s left arm was lying limply at her side and the baby was not moving her left arm.

[25] Naleaha weighed 9 lbs., 6 ounces at birth. X-rays of Naleaha’s shoulder showed no fractured clavicle. When she first saw a pediatrician in the hospital, Dr. Kazmie, Ms. Jones told the doctor that something was wrong with Naleaha’s shoulder. At that time, the baby’s left arm was recorded as being limp with only limited range of motion, and an inability to hand grasp with the left hand. It was noted that the child had facial bruising. The Complications Summary in the records prepared by Dr. Kazmie show that the diagnosis made at the hospital, following a shoulder dystocia and forceps delivery, was of a “left arm Erb’s paralysis” or “Erb’s palsy”, but Ms. Jones testified that no-one ever told her that. The Complications Summary notes that Naleaha was to have physiotherapy and she was to be referred to the Peripheral Nerve Clinic in London, Ontario.

[26] Ms. Jones stayed in the hospital for 2- 2 ½ days, and went home on January 1, 2005. Following discharge, Naleaha could still not move her arm. Ms. Jones remembers taking Naleaha to Dr. Miller’s clinic in London, Ontario for the first time when she was a couple months old. At that time and after Ms. Jones started attending Dr. Miller’s nerve clinic, the records show and she understood that there was nerve damage to Naleaha’s left shoulder and arm, but they could not tell her how serious it was. As the February 24, 2005 records revealed, “[h]er mom and dad have both noticed hand flexion and improvement in wrist extension but no improvement around the shoulder girdle or elbow flexion.” Naleaha did start to become more active and her fingers and hands started to work, but her elbow would not bend and she could only just lift her shoulder moderately. Ms. Jones recalls being given physiotherapy exercises to try and improve her condition.

[27] Ms. Jones and Mr. Carter took Naleaha to Dr. Miller’s clinic in London for follow-up every few months, and Naleaha did make some progress. She started to be able to lift the shoulder but the arm itself hung in a turned inward manner with the palm facing out, a condition Dr. Miller would later describe as “waiter’s-tip arm”. They started to talk about surgery to try and remedy Naleaha’s condition.[^3] Ms. Jones testified that Dr. Miller told them that the injury had been caused by “stretched nerves.”

[28] Naleaha had a shoulder surgery in October 2006. Dr. Faber performed an arthroscopic capsulectomy and related procedures to her shoulder. She did achieve some gains from the surgery. It gave her the ability to move her hand, but due to her shoulder injury she remained unable to move her elbow. As the records note, “[u]nfortunately, this did not result in a sustained improvement in shoulder ROM[^4] after a growth spurt and as a result, she required a second operative procedure to try to correct the shoulder girdle deformity and loss of motion.” The shoulder injury did not largely interfere with her growing up, and she learned to accommodate herself and managed by doing things in her own way. However, as her mother reported, doing up shirts and zippers was a problem for Naleaha.

[29] Naleaha had a second surgery when she was 10 years old. There had been some deterioration of her condition and it was hoped that with a muscle re-attachment, her condition could be improved. However, Dr. Miller determined that the deteriorated condition of the muscle would not permit the surgery to be undertaken successfully. As a result, Naleaha’s left arm is shorter and it looks somewhat deformed to this day. She can write with her left hand, but needs to use her right hand to assist in moving her left forearm as the pen moves across the page. Ms. Jones and Naleaha last saw Dr. Miller in November of 2018, ahead of this trial. Dr. Miller advised that there was no prospect of further improvement.

[30] In her evidence, Ms. Jones believed that Dr. Warwaruk had used forceps early in the delivery process, but at her Examination for Discovery in 2008, her recollection was quite different. She also recalled that the nurses pushed quite a few times right on her abdomen. She said that Dr. Warwaruk had her stop pushing and had the nurses start pushing on top of her stomach. When asked what Dr. Warwaruk was doing while they were pushing, Ms. Jones said that he was working in concert with them and that he was pulling. She also acknowledged then that she was unsure if he was using forceps or anything to pull the baby at that time. It is important in my view that Ms. Jones acknowledged in her testimony before me that she actually blacked out for a short while, and at that time, in 2008, she had no specific recall of the precise events immediately before Naleaha was born.

2. Mr. Brad Carter

[31] Like Ms. Jones, Mr. Carter has lived his entire life in Windsor. He works in the construction industry. He was 25 or 26 years old when Naleaha was born. He is now 40.

[32] Mr. Carter recalls accompanying Ms. Jones to the hospital on December 30, 2004, the day that Naleaha was born. He recalls being with her as her labour commenced. He thought the labour was going well. He remembers Dr. Warwaruk coming in once Ms. Jones was ready to give birth. Mr. Carter was standing on Ms. Jones’ right side by her shoulder, while her aunt, Ms. Warner, was standing on her left side at her shoulder. He also recalled that there was a nurse standing, he said, between Ms. Jones’s legs, and that a second nurse came in, but he does not remember when.

[33] Mr. Carter recalls that Dr. Warwaruk sat on a stool, also between Ms. Jones’s legs. He told Ms. Jones to push. By that time, Mr. Carter said there was one nurse on either side of Ms. Jones. Mr. Carter could not see Dr. Warwaruk’s hands, but said he could see his face, his facial expression. It was positive.

[34] However, as Ms. Jones continued to try and push about four more times, these efforts were unsuccessful in delivering the baby. He then remembered that the nurse told him to hold Ms. Jones right leg up towards her chest, and that her aunt, Ms. Warner, did the same thing on her left side. Ms. Jones could still not push the baby out.

[35] The next recollection he had was of the nurses asking him and Ms. Warner to move out of the way. He was standing by Ms. Jones’s shoulder and Ms. Warner was on the other side. They were no longer holding Ms. Jones’s legs, which had gone back down into the stirrups. He said the nurses got on the bed to push on Ms. Jones’s abdomen. He said they were pushing on her upper abdomen. One of them was on each side. He could see that the nurses hands were on top of each other, and that they were performing a CPR-type motion, below Ms. Jones’s rib cage area. He recalled Ms. Jones being out of breath because they were pushing hard. Seconds later, the baby had been delivered.

[36] He could not see Dr. Warwaruk’s hands, but he testified before me that he could see “a strain” on Dr. Warwaruk’s face, “like he was pulling while the nurses were pushing.” He remembered Dr. Warwaruk telling them after Naleaha was born that her collarbone may have been broken.

[37] Mr. Carter recalled first seeing his daughter a couple of hours later. He said her right arm was curled up, but her left arm was just hanging limply. He observed that she seemed unable to grasp his hand with her left hand.

[38] Despite these recollections, Mr. Carter acknowledged that it was very hard for to remember. He said the entire time, then and since, had been very stressful, and that it was 14 years since the events occurred. He remembered that there was a lot of commotion in the delivery room. He acknowledged that there might well be details that he did not remember, but he said he believed that the memories he did have were clear.

[39] Mr. Carter had no recollection of ever seeing forceps being used during the delivery, but he gave different evidence at his examination for discovery in 2008. He testified then that he remembered Dr. Warwaruk telling the two nurses to get up on the bed to start pushing on Ms. Jones’s stomach, but did not recall any discussion between Dr. Warwaruk and the nurses telling them how to push or what force to use. He claimed to remember that the nurses were pushing on the top of Ms. Jones’s abdomen, in the area below her rib cage. He remembered that Dr. Warwaruk performed an episiotomy.

[40] At discovery, however, he claimed that Dr. Warwaruk had asked for forceps because the baby was getting stuck, and Ms. Jones and the nurses were still pushing. He thought it might have been around 5:50 PM. He wasn’t sure of the time, but claimed to remember the episiotomy and the nurse’s telling Ms. Jones to push and that they might need forceps.

[41] He continued as follows:

[a]nd then… Yeah, they ended up using the forceps to pull her out by the top of her head and that’s pretty much that’s all I remember. Like her coming out and then them saying that she might have a broken collarbone and she was gone. Like we haven’t seen her. I never even got to, you know, hold her or cut the umbilical cord. Didn’t ask me nothing and then that’s all I remember.

[42] Mr. Carter did not recall anything else in connection with the delivery. When reminded of this evidence, Mr. Carter acknowledged that he forgot that Naleaha had been delivered using forceps, but he also said that the nurses were pushing on Ms. Jones’s abdomen before the forceps were applied.

[43] Mr. Carter clarified his comment that he thought “there was something wrong”, as an inference that he draws now from what he claims to have observed at that time, but he also admitted that he did not tell anyone in 2008 about “a strain” on Dr. Warwaruk’s face at the time the discoveries were conducted. He said he has remembered that observation in the years that have passed since 2008. However, Mr. Carter acknowledged that he did not take any notes at the time. He was simply relying on his memory of what happened fourteen years before.

[44] Mr. Carter also said that the nurse’s notations recorded in the Labour Progress Flowsheet Record were incorrect. That record was prepared by the nurses during labour, at, and immediately after the delivery. It appears that each entry, as made sequentially as the delivery proceeded, was signed or initialed by one of the nurses. The progress notes, as best as I can decipher the handwriting, read as follows:

1615 repositioned. cervix fully [signature]. 1730 Dr. Warwaruk in. [signature]1740 Tuckers w/axis applied. [signature] 1747 Head delivered x 3 minutes + supra-pubic pressure x 2 RN’s…epis[iotomy] and ICU present. [signature] 1750 delivered cpen [?] female Dr. Warwaruk vaginal. [signature] [low] BP w/ [undecipherable] given O2 per [undecipherable]. 1830 BP recovered.[signature]

The same signature that appears in each of the spaces noted above, is also present on the final signature line at the end of page 2 of the Labour Progress Flowsheet report. I do not know whose signature it was, but presume it was one of the two unknown nurses that were present with Dr. Warwaruk in the delivery room and who were participating in the delivery.

[45] Mr. Carter also disagreed that the nurses applied supra-pubic pressure. He recalled that they were pushing on Ms. Jones’s upper abdomen. He said they were applying fundal pressure. However, Mr. Carter also acknowledged that he was on Ms. Jones’s right-side and that he could not see the baby actually being delivered.

3. Ms. Diane Warner

[46] Ms. Diane Warner is Shylena Jones's aunt. Shylena's mother was Diane Warner's sister, but she passed away at 18 years of age, just after Ms. Jones was born. As a result she and Ms. Jones became and remain very close. She was 17 years old when Ms. Jones was born, and is now 54.

[47] Ms. Warner was present when Naleaha was born. She arrived in the late morning Apart for odd moments, she was with her niece throughout the labour and delivery. She remembers Ms. Jones’ labour going well. Ms. Jones was not in any distress. She was waiting to dilate so that she would be able to deliver the baby.

[48] When Dr. Warwaruk came into the delivery room, there were two nurses present, her niece Ms. Jones, and Mr. Carter. She was the sixth person. She was standing on Ms. Jones's left side while Mr. Carter was on her right side. She said Dr. Warwaruk was sitting on a stool between Ms. Jones's legs throughout the delivery.

[49] Ms. Warner remembered her niece starting to push and being told to push by Dr. Warwaruk. She remembers trying to comfort her by telling her she would only need to push two or three times in order to deliver the child, because she said that had been her own experience. But in the end, Ms. Jones had to push a number of times, and Ms. Warner remembered Shylena turning to her and telling her, jokingly, that she had lied to her.

[50] She remembered the nurses asking her and Mr. Carter to each hold one of Ms. Jones's legs back towards her shoulders. Ms. Warner did not know what Dr. Warwaruk was doing. She could not see what he was doing and kept her eyes averted from whatever was going on.

[51] Next she remembered one of the nurses moved her out of the way and climbed onto the bed. The nurse used the bedside railing as a ladder with one foot on the bed rail, and her knee on the bed. Ms. Warner knew there was another nurse on the other side. She could not see the nurses’ hands because the positioning of the nurses’ bodies meant she could only see the backside and the side of the nurse who was on her side of the bed. Ms. Warner could not see what the other nurse was doing. She assumed that they were trying to help get the baby out because "it had been a long time." She thought they were on the bed for about a minute. Seconds later Naleaha was born. The nurses got off the bed. Ms. Warner did not see the actual birth. She had no recollection of anybody speaking about any birth defects or physical deformities at the time of the delivery.

4. Dr. Thomas Miller

[52] Dr. Thomas Miller is an associate Professor in the Department of Physical Medicine and Rehabilitation at the University of Western Ontario in London, Ontario. He teaches in the Shulich School of Medicine and Dentistry, St. Joseph's Healthcare Unit. He has been a fellow of the Canadian Society of Clinical Neurophysiology from 1993 until the present. His eleven-page resume details his education and extensive qualifications to testify as an expert.

[53] In his daily practice, Dr. Miller deals treats individuals who have had a disability. His practice is essentially a cross between orthopedics and neurology. He holds a fellowship in clinical neurophysiology, but has a special interest in brachial plexus injuries. He explained that his main expertise is how nerves get injured, how they function, and how physicians can make them well after injury.

[54] Dr. Miller testified about Naleaha’s injury as her treating physician for her brachial plexus injury, after birth and to the present. He first saw her on February 24, 2005. His records show that the electro-diagnostic conclusion he reached was “an obstetrical brachial plexus palsy. Erb’s type.” He described as a “classic” Erb’s Palsy, that is, a brachial plexus injury that specifically affected the C-5 and C-6 cervical nerves. The injury initially manifested additional weakness, suggesting an injury to the entire plexus, but those aspects improved over time. Nevertheless, it was his opinion that the injury is moderate to severe, will likely never improve, and that it causes Naleaha functional impairment on a daily basis.

[55] In the third last paragraph of the report he prepared for use at this trial, he succinctly summarized Naleaha’s current and future physical prospects:

In my opinion, from a functional perspective she has been left with a permanently impaired left upper limb and effectively will use the left as an assist only. She will continue to note challenges as it relates to being principally one armed, and developing compensatory strategies as a direct result of her brachial plexus injury when she was born. These impairments will impact on her day-to-day function, occupational options, sporting choices, and will result in a competitive disadvantage with an impairment and lifelong disability and will need to be supported as described above.

[56] Dr. Miller explained in his testimony why Naleaha’s injury was classified as “permanent and partial. He said:

…[T]he permanency has to do with the timeframe over which the nerve has a chance to recover, so by the time of December 2017, Lee has now a teenager, and she still has a poorly functioning arm, so by definition it's permanent. And the fact that it's partial means just like when wires - so in page 12 the picture of the nerve some of those wires were able to recover and to give her some function, but unfortunately many of them weren't and has left her with a weak shoulder and ability to bend her arm, and that's why it's permanent and that's why it's partial, as opposed to permanent and complete meaning inability to use the arm at all.

[57] Thus, in his opinion, Naleaha’s injury as it presents today results from the inability of the shoulder to develop properly, due to the failure of the brachial plexus nerves to assist in the formation and development in a young child of a proper shoulder. He likened the nerves to a piece of rope, woven of other strands. The rope may still be a single unit, but if individual strands are weak or torn or broken, then the rope will be weaker than it otherwise would be. So in Naleaha’s case, some of the “wires”, the nerve fibers that go to her shoulder and elbow, will never repair. While efforts were made surgically to improve the shoulder, Dr. Miller explained that the state of medicine simply does not permit torn nerve fibres to all be individually repaired, especially in a baby.

[58] Counsel for the Plaintiff sought to elicit Dr. Miller’s opinion on the cause of Naleaha’s injury, but Defence counsel objected and his objection was sustained. I did not permit those questions to be asked because I had previously ruled that Dr. Miller was not qualified to give opinion evidence for that purpose.

[59] In summary, Dr. Miller’s evidence provided helpful factual background and context to the nature of the injury, but it was not evidence that either relates to the standard of care that Dr. Warwaruk was bound to adhere to, nor could it assist in the question of causation, except at a most general level. For those two questions, it is the evidence of the two expert obstetricians that is relevant. However, I do accept Dr. Miller’s opinion that Naleaha Jones-Carter’s brachial plexus injury is a partial but permanent injury that will leave her C-5 and C-6 nerves and consequential arm function affected throughout her life.

5. Dr. Savas Menticoglou

[60] Dr. Savas Menticoglou testified as an expert for the Plaintiffs, both as to the standard of care and causation. The main thrust of Dr. Menticoglou’s opinion was that one can and should infer that Dr. Warwaruk used excessive traction in Naleaha’s delivery, and thereby breached the standard of care, solely from the fact that a permanent brachial plexus injury occurred.

[61] Dr. Menticoglou is a medical doctor and a Fellow of the Royal College of Surgeons of Canada. He practiced and taught for almost 30 years in the Division of Maternal-Fetal Medicine, in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of Manitoba in Winnipeg. He has been involved and weighed in professionally in the continuing debate over whether, and the extent to which traction should be permitted to be used during deliveries. He has written and commented extensively on shoulder dystocia during birth, and on this particular issue. He has been accepted and testified once before as an expert.

[62] I accepted Dr. Menticoglou as “an expert in Obstetrics and Gynecology, qualified to give an opinion on the standard of care applicable in the delivery of a baby with shoulder dystocia, and on causation respecting how permanent brachial plexus injuries occur during the delivery of a baby with shoulder dystocia, and to provide his opinion relative to those issues in this particular case.”

[63] Dr. Menticoglou has expertise and interest in shoulder dystocia arising during birth, but it was also plain that brachial plexus injuries arising from shoulder dystocia during birth are of enormous concern to him. One reason was that his closest colleague had the death of the baby arise during delivery due to a severe brachial plexus injury. Further, he acknowledged having conducted a delivery in circumstances where a brachial plexus injury resulted, even though there was no shoulder dystocia diagnosed and he had no sense that any unnecessary traction had been applied to deliver the baby. It was plain to me from his recounting of that history and the manner in which he gave his evidence, that those occurrences have had a serious impact on Dr. Menticoglou’s professional life.

[64] The underlying problem, as both experts agreed, is that the baby is not independent of the mother until after delivery when the umbilical cord is severed. Until that time, the baby is still running on the mother's systems, so to speak, and on the mother's oxygen. So to the extent that the narrow passageway of the pelvis and the cervix at birth may impact on blood flow and oxygen, it is critically important for a baby to be delivered quickly, within no more than five minutes of the crown of the baby’s head being delivered at the outside, and preferably sooner, and for the newborn to be severed from the mother and to start to live on their own infant systems as quickly as possible. Failure to sever the baby from the mother for a period approaching five minutes seriously increases the risk of obstetrical infant mortality.

[65] Dr. Menticoglou freely acknowledged that Dr. Warwaruk was a very experienced obstetrician who was very familiar with, and able to identify a shoulder dystocia presentation during delivery, as he did in this case. The obstetrician needs to know what manoeuvres are available to resolve the problem when it presents itself and must make a conscious decision not to pull on the baby. As all of the obstetricians agreed, the presentation of a shoulder dystocia during delivery is a medical emergency. It needs to be resolved within a few minutes. In Dr. Menticoglou’s opinion, however, there is a tendency for doctors and obstetricians to pull too hard. In his opinion, that is the direct cause of brachial plexus injuries in newborn infants.

[66] Dr. Mentocoglou had no doubt that Dr. Warwaruk was well aware of, and experienced in steps he needed to take once he had identified the shoulder dystocia in this case. The McRoberts, supra-pubic pressure, and Woods screw maneuvers were all identified correctly by Dr. Warwaruk. Indeed, as the standard of care required, there were two Intensive Care Unit nurses or staff persons who came into this delivery room prepared to act quickly if the mother’s or baby’s circumstances required it.

[67] Dr. Mentocoglou indicated that the doctor also needed to tell the mother to stop pushing once a shoulder dystocia has become evident, while supra-pubic pressure was being applied. This was important because the mother’s force can interfere with the force and purpose of the maneuver itself. I note parenthetically at this point that Dr. Warwaruk did just that, but that Ms. Jones evidence shows that she misunderstood his statement and continued to push once more, but then stopped.

[68] The standard of care applicable to Dr. Warwaruk in this case relative to the management of shoulder dystocia during delivery, was as set out in the so-called “ALARM” protocol – the “Advanced Labour and Risk Management” protocol.[^5] That is a course syllabus and instruction circular published by the Obstetrical Content Review Committee of the Society of Obstetricians and Gynaecologists of Canada (“SOGC”). While they agreed on little else, Dr. Menticoglou and Dr. Barrett did more or less agree that the standard of care in 2004 was the protocol articulated in the ALARM Course Syllabus, although they differed on how it should be interpreted.

[69] The ALARM course teaches that an obstetrician or family doctor confronted with a shoulder dystocia during a delivery must be careful to insure that they adhere to the so-called “Four ‘P’s” during delivery: “(i) don’t pull; (ii) don’t push; (iii) don’t panic; and (iv) don’t pivot.”

[70] Dr. Mentocoglou has not only taught at the ALARM course, but as I mention below, he has also been an adviser to the Obstetrical Content Review Committee of the Society of Obstetricians and Gynaecologists of Canada in the course of their regularly review, reconsideration, and approval of the standard of care to which obstetricians must adhere.

[71] Dr. Menticoglou explained the ALARM standard instructions in greater detail. First, the standard recognizes that when a shoulder dystocia is diagnosed, there are specific maneuvers that the physician should perform, usually in a particular sequence, to try to dis-impact the baby’s shoulder from the underside of the mothers symphysis pubis bone. The ALARM protocol seeks to regulate, and speaks to the manner in which those maneuvers are to be performed. Indeed, there is a so-called “ALARMER” mnemonic that has been developed by the SOGC to assist caregivers to remember the appropriate and consistent management that they should apply when presented with the potential complication of shoulder dystocia.

[72] The SOGC warns that every delivery should be seen as having the potential to result in shoulder dystocia, given the inability of doctors to predict the occurrence of shoulder dystocia reliably. Accordingly, it is critical for a management protocol to be in place and well known to all caregivers. The mnemonic goes as follows:

A Ask for help

L Lift/hyperflex Legs

A Anterior shoulder disimpaction

R Rotation of the posterior shoulder

M Manual removal posterior arm

E Episiotomy

R Roll over onto “all fours”

Shoulder dystocia is not a maternal soft tissue problem. However, episiotomy may facilitate the performance of the above manoeuvres by allowing for additional access. When shoulder dystocia is recognized, it is important to instruct the woman to delay pushing until manoeuvres to relieve the obstruction are carried out.[^6]

[73] The ordering of those maneuvers is to first perform the McRoberts manoeuver. Dr. Mentocoglou described it as follows:

Now, the hope is with the McRoberts maneuver is if you take the woman's legs and bring them back sharply towards her abdomen and chest that the two places, the hips where the pelvis is attached, that that movement will rotate a little bit, the pelvis. It doesn't actually enlarge the pelvis but the hope is you have that, the symphysis pubis here and you have the stuck shoulder. The hope is that if you adopt that position it will, rather than moving the shoulder you're actually moving the pelvis and it might slide over the stuck shoulder. So that's the theory that by sharply flexing the mother's thighs you will rotate the pelvis towards the mother's head I guess, and this may allow the symphysis pubis where the shoulder is stuck to move over the stuck shoulder. That's the theory behind it.

[74] The doctor confirmed that the role of the obstetrician in doing the McRoberts maneuver is essentially asking for it to be done. It requires two persons to perform the manoeuvre. Sometimes, the father or other relatives will assist, but regardless of who does, it requires two adults. One of them takes each of the mother's legs and assists in bringing it back up towards her shoulders in order to alter the position of her pelvis in the hope of disengaging the baby’s impacted shoulder.

[75] If the McRoberts maneuver fails to dislodge the baby’s shoulder, as in this case, the next step can be to have one or two nurses apply supra-pubic pressure. The ALARMER mnemonic provides instructions to achieve supra-pubic pressure in one of two ways, ether by the Abdominal Approach, or by the Vaginal Approach. They are described as follows:

Abdominal Approach – apply supra-pubic pressure with the heel of clasped hands from the posterior aspect of the anterior shoulder to dislodge it (Mazzanti manoeuvre). Apply a steady pressure first and, if unsuccessful, apply a rocking pressure (the Mazzanti manoeuvre, in association with McRoberts, will result in the safe delivery of the baby in 91% of cases). It is necessary to know the position of the occiput so as to apply pressure from the correct side for greater effectiveness. It is also useful to have a stool and all delivery suites in order to facilitate this mover in the event of a shorter assistant.

Vaginal Approach – abduction of the anterior shoulder of the baby by applying pressure to the posterior aspect of the shoulder (i.e., the shoulder is pushed towards the chest, or pressure is applied to the scapula of the anterior shoulder) (Rubin manoeuvre).^7

[76] Dr. Mentocoglou explained his views about how supra-pubic pressure should be administered, and I understood his evidence to be in agreement with the content of the ALARM course syllabus, but he disagreed that two nurses could push the shoulder correctly, and expressed his view that a nurse on either side of the mother was not appropriate. In his evidence, any pressure applied above the mother’s belly button would constitute impermissible fundal pressure. Supra-pubic pressure was not applied appropriately, in his view, if the pressure was exerted at the top of the uterus, even if below the ribcage. He said that such pressure would not be in accordance with the standard of care.

[77] If that maneuver fails, the third option is to preform what is known as the Woods’ screw maneuver (named after Dr. Woods) to achieve a rotation of the posterior shoulder. Finally, if that fails, an effort may be made to manually remove the baby’s posterior arm with an episiotomy being cut to enlarge the available room for the baby to be delivered.

[78] Regardless, there is a limited window of time to solve the shoulder dystocia emergency without causing potentially life-threatening circumstances to the baby. The maximum time available to solve the problem is five minutes. Dr. Mentocoglou did accept that an obstetrician can pull harder on the baby’s head as time passes because, as he put it, “a damaged arm is better than a dead baby.”

[79] Throughout these maneuvers, the ALARM protocol warns the physician not to pull on the babies head, not to push on the mother’s fundus[^8], not to panic, but instead stay calm and take a methodical approach on working through the maneuvers, and finally not to pivot or permit any severe angulation of the baby’s head. The ALARM protocol that was in evidence at this trial, also contains illustrations and diagrams to demonstrate how the manouvers should be performed. It was a 2008 version, as a 2004 version could not be located, but the parties agreed that the 2008 version was reliable for the purposes of this trial.

[80] Apart from the ALARM protocol, however, experts also say that there is an industry practice that doctors also use “gentle” traction in the course of the manoeuvers. As Dr. Warwaruk’s evidence shows, he understood that in that industry practice at that time, and indeed up until the present, the application of gentle traction was accepted. Dr. Warwaruk described it as “minimal”.

[81] However, this, and other aspects of the delivery practices were challenged by Dr. Menticoglou. For example, Dr. Menticoglou did not agree with the method of performing the McRoberts manoeuvre as it was generally understood in 2004, even though he acknowledged that it was within the standard of care. He said:

Well, the - there is a distinction between McRoberts position and McRoberts manoeuvre, at least I think there’s a distinction. McRoberts position is putting the legs in that position. However, it is taken by many obstetricians that McRoberts manoeuvre consists of putting the legs in that position and then trying to pull, so the McRoberts manoeuvre is, is taken as two parts, putting the legs in that position and then giving a pull.

[82] In Dr. Menticoglou’s opinion, the standard of care requires the obstetrician to be as gentle as possible, and to not persist in pulling on the baby. The reason is that studies that Dr. Menticoglou referred to showed that the application of traction stretches the nerves from the neck to the impacted shoulder resulting in damage being caused. The doctor stated that if you pull too hard, even for a second or two, the baby’s brachial plexus nerves can be ruptured.

[83] Of particularly relevance to him in the scientific literature was the 1905 study by Drs. Clark, Taylor and Prout, entitled A Study on Brachial Birth Palsy.[^9] This was a cadaver study in which dissected infants were placed in all of the attitudes incident to delivery in either vertex or breach presentations. It was found that only one thing caused the stretching of the nerves, namely, increase in the distance from the head and neck to the shoulder. Nevertheless, the authors also noted that:

It is erroneous to suppose that laceration birth palsy occurs only in mismanaging labour; it may easily result in highly skilled hands, as shown by its occurrence at the birth of Emperor William of Germany, on which occasion Sir William Jenner was the accoucheur.[^10]

[84] While it remains true that a laceration birth palsy does not only occur only in a mismanaged delivery and can as easily result in highly skilled hands, the exact circumstances of the Emperor’s brachial plexus injury at birth were somewhat different from those present in this case. His injury resulted from the use of the posterior arm manoeuvre in a breech birth presentation. However, addressing the question whether the creation of tension was the causative factor, the authors concluded that:

Some authors say it is a factor; some that it is one of the chief factors. In the dissected specimens above-mentioned the only factor, which caused damage to the nerve roots, was tension, and tension sufficiently great caused lesions in the same situation and of like nature to those found in the seven cases operated upon. Therefore tension is the only factor concerned in the production of persistent (laceration) brachial birth palsy of the Erb’s type. When tension is present certain other factors may increase the amount of damage to the nerves, as we shall see later.[^11] (emphasis in original)

[85] Dr. Menticoglou was asked whether it was within the applicable standard of care for a physician to pull on the baby during the McRoberts maneuver. He responded, somewhat cavalierly in my view, that “if the standard of care was what a lot of obstetricians used to do, then that’s what a lot of obstetricians used to do.” He thought it was wrong, but acknowledged that was what a lot of obstetricians were doing in 2004. In his view, the correct approach was to wait and see if the McRoberts position freed up the baby’s anterior shoulder, and not pull at all, that is, not to apply any traction.

[86] Dr. Mentocoglou has written several pieces in the professional literature addressing that exact point. Nevertheless, as discussed further below, while it is plain from the testimony of both experts that the use of gentle traction was accepted as being within the standard of care in 2004, the practice of using gentle traction continues to be an issue that Dr. Mentocoglou has persistently raised as not being within the standard of care, as he has advocated extensively for a prohibition against the use of any traction.

[87] In summary, while he would accept it only reluctantly, it is nevertheless clear that the use of gentle, or as Dr. Warwaruk described it, “minimal” traction, was within the standard of care in 2004. It is the use of excessive downward lateral traction that was plainly below standard of care unless all of the maneuvers had been tried twice and the baby was still not coming out. In those circumstances, if the doctor was nearing the critical five-minute mark where there could be real concerns for the baby’s life, or concerns that the baby was in distress, the preservation of life will call for more heroic measures and potentially substantially increased traction.[^12]

[88] Dr. Mentocoglou agreed in cross-examination that the only concern with Dr. Warwaruk's conduct was the claimed use of excessive traction. Apart from that, Dr. Mentocoglou agreed that the management of the pregnancy, the decision to induce the labour, the labour, and the delivery with forceps were “all perfectly fine.” Dr. Mentocoglou also accepted Dr. Barrett's view that it is very difficult for an obstetrician to judge between what constitutes the application of gentle traction, and that which is enough to deliver the baby and he accepted that the amount of traction that is to be applied will always be a matter of judgment for the obstetrician.

[89] Both in his expert report of October 20, 2017, and in his evidence before me at trial, it is plain that Dr. Mentocoglou considered the only breach of the standard of care in his review of the records pertaining to the delivery of Naleaha to be the assumed use of excessive traction during one of the pulls, either to deliver the anterior shoulder during the McRoberts manoeuvre or during supra-pubic pressure.

[90] At its core, Dr. Mentocoglou also acknowledged and agreed that the foundation of his opinion as to whether Dr. Warwaruk breached the standard of care by applying excessive traction was the stand alone fact that Naleaha had suffered a permanent brachial plexus injury. Stated differently, in arriving at his opinion Dr. Mentocoglou acknowledged that he relied on the fact and the presence of a permanent brachial plexus injury as necessarily meaning and leading to the conclusion that Dr. Warwaruk had used excessive traction in managing the shoulder dystocia.

[91] A number of articles and studies were put to Dr. Mentocoglou, several of his own and several originating from the American College of Obstetricians and Gynecologists, one based on data from Canada. Despite the fact that the doctor has himself published in the American Journal of Obstetrics and Gynecology (the “AJOG”), it was surprising to me that Dr. Mentocoglou would not accept publications of the American College of Obstetricians and Gynecologists as "authoritative".

[92] He was asked what the word “authoritative” means in the context of professional literature, and what it is that establishes the existence of a standard of care at a moment in time. Dr. Mentacoglou gave a lengthy but, to me, somewhat disconcerting response:

Yeah, okay. It is what authoritative bodies like the American College and the, the ALARM course and that, what they say. I wondered yesterday when Mr. Veneziano asked me whether I would call the American College of Obstetrics and Gynecology publication on shoulder dystocia, whether I thought it was authoritative.

I have a concern, particularly from American literature that the descriptions of their shoulder dystocia and what’s permissible may be done to give obstetricians an excuse when the bad injury happens and when a bad injury - to have something to say, that the American College is not being perfectly objective but is trying to describe things to give obstetricians an excuse.

And I have a personal sort of experience with it, with the ALARM course. In 2016, 2017 and 2018 I was the principal author of the chapter on shoulder dystocia in each case, I had to work from the 2015 report, and I made little changes in 2016 that passed muster with the Committee, and made some more in 2017.

And in 2018 I, I think I gave a copy to Ms. MacFarlane, I hope it – but in 2018 I wanted to put the statement in that virtually all brachial plexus injuries are traction related and the committee did not want that in. And the argument they gave is, this would leave obstetricians defenceless in cases of brachial plexus injury. And my feeling is that this problem of brachial plexus injuries is going to continue until obstetricians instead of trying to protect themselves acknowledge that traction is the main problem. And one of the, this article that you just had me – 2018, one of the reasons that I published it including my own two cases, is to say that I am willing, even in my own experience, to acknowledge that probably traction caused the injury. So my main problem is not, in many cases, not with the conduct of the obstetrician, but with the standard that has been promulgated by authoritative bodies.

[93] Moreover, Dr. Mentacoglou acknowledged that he took a similar view of the Society of Obstetricians and Gynecologists of Canada (the “SOGC”). He appears to have formed that view based upon the example he gave of the ALARM course, where he says the Committee told him not to include a statement against the use of traction, because “it would make it harder for obstetricians to defend themselves.”[^13]

[94] He was asked whether that meant that we should be skeptical in respect of anything stated in the ALARM course, given his seeming view that the SOGC has adopted a mandate of some sort to protect obstetricians, Dr. Mentacoglou responded:

I suspect part of the mandate may be to protect obstetricians. I don't have direct proof of that but I suspect that may be it.

[95] Nevertheless, in spite of his suspicions, Dr. Mentacoglou also acknowledged in a case that he had personally been involved in with a mother who had type II diabetes, where shoulder dystocia was identified and Dr. Mentacoglou delivered the posterior arm of the baby, which led to a fracture of the humerus, that the child nevertheless suffered a permanent brachial plexus injury. This occurred despite Dr. Mentacoglou’s perception that there was no downward traction out of the ordinary applied by himself or the resident who was assisting in the delivery.

[96] As such, in a case where there was no perception of excess traction whatsoever, and no intention of applying excessive traction, a permanent brachial plexus injury nevertheless resulted. Dr. Mentacoglu expressed the belief that he had met the standard of care in that case, despite the presence of the injury. But he also acknowledged that it was that case that caused him to suggest and argue that the standard of care in respect of the use of downward traction should change. In his view, as previously noted, the current standard of applying only gentle traction should change, and permit no traction at all.

[97] Nevertheless, even if Dr. Warwaruk encountered shoulder dystocia in the baby he was delivering and used traction to diagnose that condition by delivering the baby’s head, and in the course of the McRoberts manoeuvre, and then used supra-pubic pressure when the McRoberts manoeuvre failed to dislodge the shoulder dystocia, Dr. Mentocoglou stated that the actions undertaken by Dr. Warwaruk were reasonable and did meet the standard of care if Dr. Warwaruk believed that he was using only a reasonable and safe level of traction, and was well aware that too much traction could cause a permanent brachial plexus injury. He also testified that his answer would not change and Dr. Warwaruk still met the standard of care, even if Naleaha Jones-Carter suffered injury, so long as Dr. Warwaruk believed, based on his four decades of experience, that he was not pulling hard, and was applying only minimal or gentle traction to get the job done without damage.

[98] In the course of his testimony, in addition to the 1905 study, Dr. Mentacoglu was referred to a number of other articles, some written by him and some by others. Two of those were written by Dr. Gherman[^14] and published in the AJOG. One was entitled “Brachial Plexus Injury: An in utero Injury”, and the other “Spontaneous vaginal delivery: A risk factor for Erb’s palsy?” , The first of the two articles stated that it was based upon "recent reports in the obstetric literature", and that its purpose was:

…to review the literature supporting the concept that many cases of permanent brachial plexus palsy may be unavoidable, unpredictable in utero injuries that occur without relation to traction and in the absence of historic risk factors.

[99] However, while I accept that these articles are review articles, that is they are not based on new but rather existing studies, it surprised me that when asked for his views on that publication, Dr. Mentocoglou described it as “a selective culling of articles trying to support a pre-existing bias.” Dr. Mentacoglu was asked to clarify what he meant by his statement, given that I had no evidence in front of me to support any accusation that the articles in question supported or were directed towards “a pre-existing bias” of the authors. He responded that:

I believe that particularly in the United States there is an explosion of litigation with respect to brachial plexus injury, and that in an attempt to discredit the role of traction in the occurrence of this injury that articles have been published and that one is choosing literature to support one's opinion.

[100] Dr. Gherman and his co-authors observe that the incidence of permanent brachial plexus injury after shoulder dystocia is 1.6 per thousand, but note that that injury accounts for almost all shoulder dystocia related litigation.[^15] While noting that historic obstetrical teachings have stated that brachial plexus injuries result from excessive traction and flexion exerted on the infant’s neck during delivery, the authors of the article took a contrasting position that “many recent reports” had suggested that a significant proportion of brachial plexus injuries may be in utero phenomena.[^16]

[101] Those statements were in an article published by the American College of Obstetricians and Gynecology, the United States body that Dr. Mentacoglu clarified plays a similar role in the United States to the Society of Obstetricians and Gynecologists of Canada. They try to disseminate knowledge and guidelines, and instructions on the management of various problems in obstetrics and gynecology and he agreed they are, in a sense the regulators of the specialty. But more troubling in this context was Dr. Mentacoglou’s explanation that:

I also suspect that they also act as trying to defend obstetricians and gynecologists from things that might lead to, to litigation, so that they also play not just an advocacy role for practicing the best medicine but perhaps to protect physicians.

[102] He reinforced his result driven opinion when he stated that those articles which suggested other potential causes for brachial plexus injury were not relevant here because, as he put it:

It was shoulder dystocia, it was the anterior shoulder that was injured which is almost always the case, and there was traction. And there was no other explanation, tumours, infections, congenital anomaly, or anything to suggest another cause.

[103] Dr. Menticoglou acknowledged, however, that the significance of the statistics referenced in the articles was that they actually provided support for the conduct of Dr. Warwaruk. He said:

The way I read it is that if you’re faced with shoulder dystocia and you employ the usual order of management, which includes McRoberts' manoeuvre and supra pubic pressure, as first line, that you will only end up with a permanent injury to the brachial plexus in 1.6 percent. So in one way it validates, to some degree, the approach, that is commonly used, McRoberts and super pubic to say your chance of injury is one out of 60, basically.

[104] Finally, Dr. Menticoglou was referred to the 2018 article he authored[^17], entitled “Shoulder dystocia: incidents, mechanisms and management strategies.” In it, he describes two occurrences at pp. 724-725; only the first is of relevance here because in the second case, the baby was already in distress before the shoulder dystocia presented itself. In the first case, however, no forceps were used, there was no shoulder dystocia, and there was neither supra-pubic pressure nor fundal pressure used, but the baby nevertheless sustained a brachial plexus injury. I thought this was an effort by counsel to distance Dr. Mentocoglou’s conduct in that case from Dr. Warwaruk’s conduct in this case, but more importantly, the article provides insight into Dr. Mentacoglou’s demeanour in his role as the Plaintiffs’ expert in this case. On p. 725, Dr. Mentocoglou summarized his views and conclusion when he said:

I do not think that the problem of brachial plexus injury will be solved unless obstetricians acknowledge that traction is almost invariably the cause instead of proposing other theories to spare us medico-legal problems [My Emphasis].

[105] In summary, Dr. Mentacoglou’s conclusions were that a shoulder dystocia occurred, that a shoulder dystocia will not itself damage the brachial plexus nerves, that the brachial plexus nerve got injured when downward traction is made on the head to try to free the anterior shoulder, and that almost certainly, either to make the diagnosis of shoulder dystocia or to try to resolve the shoulder dystocia while using McRoberts position and supra-pubic pressure, excessive downward traction must have been used.

[106] He reached this conclusion because the studies show that the injury does not result from the shoulder dystocia, but rather from the pulling down of the head. In his view, it is only if the head was pulled hard and towards the floor to dislodge the shoulder dystocia that the lengthening of the brachial plexus nerve would take place causing stretching and potential avulsion. In his view, excessive downward traction was not necessary to resolve the shoulder dystocia, and as such, the management of the case was faulty and the injury avoidable.

[107] Plainly, the sole foundation for Dr. Mentacoglou’s opinion that Dr. Warwaruk must have used excessive traction in the delivery of Naleaha Jones-Carter, was the fact that a brachial plexus injury was the result of the delivery. As a result, in his opinion, Dr. Warwaruk breached the standard of care.

B. Evidence for the Defendants

1. Dr. Allan Warwaruk

[108] Dr. Warwaruk was a very senior and experienced obstetrician. During his almost 40 years of practice, he served as the Chief of Obstetrics and Gynecology, for six years at the Windsor Regional Hospital where Naleaha was born, but also at the Hotel Dieu Hospital in Windsor for the preceding 12 years, before moving his practice to the Windsor Regional Hospital. He testified that he averaged between 200 and 250 deliveries a year and estimated that he probably delivered close to 10,000 babies over four decades of obstetrical practice.

[109] However, Dr. Warwaruk had no specific recollection of this case or this delivery, not only in his testimony at trial, but indeed at discoveries held ten years ago, in 2008.

[110] It was suggested to him at discoveries that shoulder dystocia is not a common phenomenon, and so he should have had a specific recollection of this event. Dr. Warwaruk rejected this suggestion at the time. To the contrary, he confirmed that shoulder dystocia is reported as occurring in anywhere from 3% to 11% of all pregnancies.

[111] As such, over his 40 years as an obstetrician, at least statistically, Dr. Warwaruk, would have seen shoulder dystocia many times. He recognized and emphasized that a shoulder dystocia is an “urgent obstetrical condition”, but there was nothing particular about Naleaha’s birth that stood out in Dr. Warwaruk's mind to assist in his recollection of particular aspects of that particular delivery.

[112] Dr. Warwaruk was plain in his testimony, that he would not have used excessive traction in his delivery of Naleaha. When asked whether he had a practice relative to the amount of traction that he used when he initially delivered the head and made a diagnosis of shoulder dystocia, Dr. Warwaruk replied:

Never to use excessive traction, only enough to accomplish what you intend to accomplish without creating damage.

[113] Similarly, Dr. Warwaruk stated that it was his practice, when utilizing the McRoberts manoeuvre after a diagnosis of shoulder dystocia, to use “just enough traction to accomplish what I was trying to do without creating any damage.” Stated differently, it was his usual practice to use only as much traction as was necessary to overcome the shoulder dystocia without damaging the brachial plexus. His usual practice was to use “minimal” traction or “only enough that was considered safe,” and never to use “excessive” traction.

[114] In the particular post-operative note prepared by Dr. Warwaruk shortly after the Naleaha was born, he described the delivery, in part, as follows:

Ms. Jones was admitted to hospital term for induction of labour because of gestational diabetes and conditions very favourable for induction. Membranes were ruptured artificially and clear fluid was noted. She was given intravenous antibiotics because of a positive group B strep culture at 37 weeks.

She had an uneventful first stage of labour. She was encouraged to use voluntary expulsive efforts but failed to bring the occiput from an occiput transverse position to an occiput anterior position. Tucker-McLean forceps were accurately applied and forceps rotation easily accomplished. Because of rather extensive molding of the baby's head, the Tucker-McLean forceps were removed and Simpsons forceps applied. Forceps assisted delivery of the babies head occurred. A shoulder dystocia became evident immediately. McRoberts maneuver was utilized and an attempt to rotate posterior shoulder to the anterior position was made. This was not initially successful and as a result, supra-pubic pressure was applied by both assisting nurses. The posterior shoulder was eventually rotated under the symphisis and the baby delivered without further difficulty.[^18]

[115] When the McRoberts maneuver did not succeed in dislodging the baby’s anterior shoulder from beneath the mother’s pubic bone, supra-pubic pressure was applied to try to dis-impact the shoulder. Dr. Warwaruk explained that the assisting nurses, or a nurse, or whoever is available, puts pressure just right behind the symphysis pubis and pushes straight down with the purpose of dis-impacting the baby’s anterior shoulder.

[116] In the Labour and Delivery Summary, Dr. Warwaruk specifically noted at the time that supra-pubic pressure was applied by both assisting nurses, but he explained that he could not recall whether that was done with one nurse on each side of the mother, or whether it was done first by one nurse and then by the second. Regardless, he relied on the nurses to ensure that supra-pubic pressure was carried out appropriately and reasonably when faced with a shoulder dystocia. He said:

Well, I’m watching right there and I’m between her legs and [the nurses] are just above on either side… The nurses are applying supra-pubic pressure in an attempt to reduce the shoulder from behind the symphysis pubis. If its not immediately successful, if you can rotate the posterior shoulder to the anterior position, then it becomes under the symphysis pubis.

[117] He explained that the rotation of the posterior shoulder to the anterior position will frequently solve the problem, because the posterior shoulder of the baby is the leading shoulder as the child is being delivered. So in the context of an axis, the anterior shoulder is behind the vertical axis, but the posterior shoulder is slightly in front of the vertical axis. So if the posterior shoulder can be rotated then it will achieve disengagement of the anterior shoulder, because as a result of the rotation, the posterior shoulder will have rotated to be in a position that is in front of the axis point where the supra-pubic bone is located.

[118] Dr. Warwaruk was asked about the practice of obstetricians and his own practice in 2004 in applying traction during the delivery of the baby’s head and the use of the McRoberts manoeuvre and supra-pubic pressure, once shoulder disclosure is encountered. He confirmed that it was his practice to use some traction during those three events, but again, he emphasized that the amount of traction would be minimal. He said he knew and understood that “the worst thing that could happen” was that damage could be caused because of traction, so his normal practice was to apply only minimal traction.

[119] He was asked if he ever ordered fundal pressure as part of the manoeuvres to manage shoulder dystocia, Dr. Warwaruk provided a definitive one-word answer – “Never.”

[120] Dr. Warwaruk also refuted the Plaintiffs’ allegations of improperly administered supra-pubic pressure. He noted that the obstetrical nurses were all very senior. They were very well versed in the procedures that were required during the course of a delivery, where shoulder dystocia was present.

[121] He acknowledged, however, that if supra-pubic pressure was incorrectly applied, it would have been his responsibility to tell the nurses to stop what was being done. That said, as he stated, he was sitting between the mother’s legs and said that he would have been watching exactly what was being done right in front of him, so he rejected the contention that the supra-pubic pressure was being applied improperly in this case.

[122] Plaintiffs’ counsel pressed Dr. Warwaruk on the amount of traction that he would have applied during the baby’s delivery, given he made no notation in the records of how much traction was applied. That led to the following exchange:

Q. All right. And so, Doctor, I take it you would agree with me that you may not remember too much traction but you might have unwittingly or unconsciously applied too much traction?

A. All I can say is that I, yet, it would be, from my own memory of what I had done and all the deliveries I had done, I could say that no, I would never use excessive traction.

Q. All right. So you're saying it's not possible, you just don't remember?

A. It's not probable. I just, I remember my standards of my, of my practice.

Q. All right. Well that is on the basis that your standard was followed, right?

A. My standard was followed? I, I hope so.

Q. It's possible it wasn't. It's possible?

A. Well, not likely.

Q. Its possible?

A. I suppose.

[123] I thought it was fair and generous of Dr. Warwaruk to allow that he supposed it was possible, but to continue to reject that it was probable. Dr. Warwaruk acknowledged it was possible, but based on his 40 year practice and the standards he had consistently followed throughout his practice and based on his collective memory of all the deliveries he had done, he was unequivocal that he would never use excessive traction – only the minimal required to get the job done without causing damage.

[124] Finally, in addition to his testimony at this trial, a number of questions and answers given by Dr. Warwaruk at his discovery in 2008 were read in by the Plaintiffs’ as part of their case. I do not refer to all of these, but only to those that supplement or might be regarded as conflicting with Dr. Warwaruk’s trial evidence. Those read in portions of discovery provide support support for the following facts:

(i) Dr. Warwaruk never thought that the baby would be macrosomic, that is, of a size to prevent vaginal delivery. The mother, Ms. Jones, was a 5'10" tall woman. As such, Dr. Warwaruk was not concerned with the size of the baby relative to the size of the mother, and did not form a view that there was an increased risk of delivery problems because of the fundal height of the baby;

(ii) The records show a short first stage of labour, with all factors favourable to the second stage of delivery. There was no indication from the first stage of delivery, that a shoulder dystocia would likely be present;

(iii) The second stage of labour lasted an hour and 32 minutes. The nurse's notes for the delivery room activity show that forceps were applied by Dr. Warwaruk at 5:40 PM, about an hour and 1/2 after the beginning of the second stage of delivery, and 10 minutes before Naleaha was delivered. Dr. Warwaruk used forceps to achieve full rotation. He switched to Simpson's forceps in this delivery because the wider cephalic curve on Simpsons forceps permitted a better fit on the baby's head. Dr. Warwaruk knew from his 40 years of experience that the baby's head was in an occiput anterior position at the point where those forceps were applied;

(iv) The shoulder dystocia became immediately evident as soon as Dr. Warwaruk was delivering the baby's head. The first curative step he undertook was the McRoberts manoeuvre. As a result of the failure of the McRoberts maneuver to yield the desired result, supra-pubic pressure was applied by both assisting nurses on Dr. Warwaruk’s request;

(v) Dr. Warwaruk worked extensively with the nurses at this hospital, but he was unable to determine which particular nurses assisted him on this particular delivery. Nevertheless, he testified they were all very experienced and knew how to conduct the manoeuvres.As he did at this trial, at discovery Dr. Warwaruk outlined the shoulder dystocia protocol and confirmed that everybody in the room was aware of it, and when called upon would do exactly what they were supposed to do in accordance with the protocol;

(vi) A total of three minutes passed from the time the crown of the babies first emerged until she was delivered. This was not an excessive period of time, where there would be increasing concern about applying significant pressure and traction to ensure the baby was delivered, rather than face potentially life-threatening conditions; and

(vii) Dr. Warwaruk did not recall recollection of the amount of force that was required or applied when he used forceps on Naleaha during the course of the delivery in this specific case. Dr. Warwaruk also acknowledged that he was not aware of any other documentation relating to the antenatal care or the labour and delivery for Ms. Jones that could assist him in answering that specific question in the circumstances of this specific case.

2. Dr. Jonathan Barrett

[125] Dr. Jonathan Barrett is a Professor at the University of Toronto in the Faculty of Medicine. He runs a fetal high risk clinic at the Sunnybrook Medical Centre in Toronto that deals with high-risk pregnancies but carries on a general obstetrical practice as well He is the Senior Scientist at Sunnybrook.

[126] Since 1992, Dr. Barrett has taught, diagnosed, and instructed clinically on the management of shoulder dystocia in pregnancy. He has experience in shoulder dystocia injuries and is very familiar with the presentation and the risks associated with shoulder dystocia delivery.

[127] Like Dr. Mentocoglou, Dr. Barrett has also been involved as an advisor on the content of the ALARM course syllabus approved by the SOGC. He has also been a Committee member. He has been retained previously to provide opinion evidence in medical malpractice cases by plaintiffs, by defendants and their insurer the Canadian Medical Protective Association, and by hospitals. I accepted Dr. Barrett as an expert “in obstetrics in particular with respect to the management of shoulder dystocia and secondly the causes of permanent obstetrical brachial plexus injury.”

[128] Dr. Barrett prepared two reports, one in June of 2013 then updated in 2018 in which he gave his opinion on the standard of care in Windsor in 2004 in the management of the pregnancy of Ms. Shylena Jones. It was Dr. Barrett's opinion that Dr. Warwaruk met the standard of care in the management of Ms. Jones pregnancy, her labour and in the delivery of her baby, Naleaha. In his opinion, there was no evidence of excessive traction present in the brachial plexus injury Naleaha sustained, and the manoeuvres carried out by Dr. Warwaruk were carried out in accordance with the standard of care.

[129] Dr. Barrett testified that, in his opinion, the application of forceps by Dr. Warwaruk to rotate the baby was a reasonable first step and met the standard of care. Once the shoulder dystocia became evident, he said that the McRoberts manoeuvre was a reasonable step in attempting to rotate the impacted shoulder out from under the mother's pubic bone. That step met the standard of care. He also considered it to have been reasonable for Dr. Warwaruk to use supra-pubic pressure. He observed that the application of supra-pubic pressure met the standard of care in 2004 and does to this day.

[130] It was Dr. Barrett's opinion that if Dr. Warwaruk used traction, he used only as much as was needed, but not so much as to cause damage. Doctors are trained to be very careful about the amount of traction that they use during deliveries of babies, but the application of some gentle traction clearly met the standard of care in 2004.

[131] It did not concern Dr. Barrett that Dr. Warwaruk instructed the nurses to apply supra-pubic pressure. It is part of the ALARM protocol. Dr. Barrett acknowledged that he has seen two nurses performing the manoeuvre separately, one after the other, but he also accepted that it was also possible for two nurses to apply the manoeuvre at the same time. The purpose is to force pressure directly down on the mother's pubic bone in an effort to dis-impact the shoulder dystocia of the baby that is underneath. The use of this manoeuvre, as described, did not concern him at all. Dr. Barrett’s evidence then turned to focus on Dr. Mentacoglou’s opinion on the brachial plexus injury being the result of an application of excessive force.

[132] When confronted with a shoulder dystocia, Dr. Barrett said that an obstetrician’s first obligation is to try and use the various manoeuvres to relieve that condition, and he observed that is exactly what doctors are trained to do. The use of such manoeuvres is always appropriate and, in his experience, would resolve the obstruction in over 90% of shoulder dystocia situations. However, he acknowledged that it is impossible to measure the amount of force that the doctor may be applying because it is a matter of judgment. It is experience that teaches the doctor what is an appropriate amount of force to apply and what amount of force might be excessive. He explained the question for the doctor is: can they feel whether the use of the particular manoeuvre is working. If not, then further steps and other manoeuvres may be necessary, but here, Dr. Barrett noted that the manouevers undertaken by Dr. Warwaruk were ultimately successful and that the baby was delivered.

[133] Dr. Barrett was referred to Exhibit 13, Dr. Mentacoglou’s July 2016 commentary on the standard of care in the Canadian Journal of Obstetrics and Gynecology, entitled “Delivering Shoulders and Dealing With Shoulder Dystocia: Should the Standard Change?”.[^19] In that commentary, Dr. Mentocoglou acknowledged that when shoulder dystocia is diagnosed, the standard management is similar to that proposed in the ALARM course manual. However, at p. 656, Dr. Mentacoglou outlines his perception of the problem with traction in the following paragraph:

When shoulder dystocia is recognized because the use of gentle downward traction has failed to deliver the shoulders and other manoeuvres have been necessary to complete the delivery, the obstetrician will be accused of not using "gentle traction" if a subsequent brachial plexus injury is noted. What I believe is happening in some cases is that the usual downward traction used in the course of non-shoulder dystocia cases may, in cases of true shoulder dystocia, be enough to damage the nerves. After the baby's head is delivered and external restitution has taken place, the standard textbook teaching is to place one's hands on either side of the head and asked the woman to push and to guide the anterior shoulder under the symphysis while she pushes. There is always an element of traction in this. If there is no shoulder dystocia, then the usual traction will not cause stretching of the brachial plexus. The obstetrician becomes accustomed to applying downward traction for all deliveries as a matter of course, and in most cases in which there is no mechanical impediment, no harm is done. However in cases in which the anterior shoulder is or could potentially be caught behind the symphysis pubis, the degree of downward traction that does not seem unusual for the obstetrician may transiently stretch the neck and damage the nerves. I think this is one explanation in cases of brachial plexus injury in which the obstetrician truthfully declares that he or she did not apply any more traction than a numerous previous deliveries without shoulder dystocia. The other possible explanation is that in cases in which the shoulder dystocia is recognized, the sense of urgency that is created may lead the obstetrician to apply more traction than he or she thinks is applied. It has been well documented that obstetricians have difficulty gauging the force with which they pull.

[134] In the next paragraph, Dr. Mentocoglou continued by asking "If these speculations are correct, what are the implications for practice? [My Emphasis]. One, he said, “is that obstetricians have been delivering babies the wrong way for many years.”

[135] Whether that seemingly speculative conclusion is correct is beyond the scope of this decision, but Dr. Barrett agreed with the first two sentences of the quoted paragraph and the acknowledgement that the forces being exerted are not measurable. But, whether or not Dr. Mentocoglou agrees, as the paragraph and other qualified authors have acknowledged, babies can be born with brachial plexus injuries in circumstances where there is no shoulder dystocia present. The mere fact that there is an injury does not mean that it was the application of obstetrical force that caused it.

[136] Dr. Barrett was asked to comment on a number of the pieces of academic literature that were made exhibits on this trial. One of these was another review by Dr. Gherman and his colleagues, published in the American Journal of Obstetrics and Gynecology, entitled “Spontaneous vaginal delivery: A risk factor for Erb’s palsy?”.[^20]

[137] Dr. Barrett was surprised at Dr. Mentocoglou’s reluctance to recognize that the Journal of the American College of Obstetricians and Gynecologists was an authoritative obstetrical publication. To the contrary, it was his view that it is widely accepted as one of the top journals, is unquestionably authoritative, and is respected as authoritative, not only in the United States, but worldwide.

[138] In this article, in the first paragraph on p. 426, Dr. Gherman and his colleagues state:

Our data, taken together with the preceding reports, provide several lines of evidence to show that not all Erb’s palsies are traction related. Rather, an in utero insult perhaps combined with a susceptibility to pressure or traction may be etiologic. Most important was the significantly higher rate of persistence amongst those Erb’s palsies without shoulder dystocia. Rather than the expected rate of 1% to 5%, we noted that 41% had permanent injury at one year of life. In accord with previous reports, 42.5% (17/40) of the brachial plexus injuries in this series lacked antecedent shoulder dystocia.

[139] In Dr. Barrett’s view, the article confirms that there are or may be other forces at play within the mother's uterus at, and preceding birth. Those forces may themselves cause brachial plexus injury. In the last paragraph of the article, Dr. Gherman and his colleagues stated that:

Brachial plexus injury occurring without shoulder dystocia is a distinct, real entity worthy of further study. Many permanent brachial plexus injuries may be due to in utero forces that precede the actual delivery. Before the recognition of the shoulder dystocia, a significant degree of stress or pressure may have already been applied to the brachial plexus. Moreover, even when a brachial plexus injury is associated with shoulder dystocia, that may have occurred independent of traction applied by the obstetrician.

[140] Dr. Barrett agreed with the conclusions expressed by Dr. Gherman and his colleagues in that paragraph, in direct contrast to Dr. Mentacoglou who disagreed with these three sentences of this conclusion. But as well, he said that another point supported those conclusions. Dr. Barrett also observed that every baby has a different susceptibility to injury, so the same degree of insult may give rise to different results in the case of different babies, owing to that individual susceptibility to injury.[^21]

[141] Dr. Barrett rejected Dr. Mentacoglou’s opinion that excessive traction caused Naleaha Jones-Carter’s permanent brachial plexus injury. In his opinion Dr. Warwaruk managed the shoulder dystocia that was presented before him in accordance with recognized protocols, did not panic in any way, and calmly went about pursuing the sequential steps. The baby was ultimately delivered within three minutes of the presentation of the shoulder dystocia condition. Just because there was an injury does not mean that there was excessive force used. Dr. Barrett emphasized that even gentle traction can cause injury, as Dr. Mentacoglou himself reported relative to Exhibit 11, having personally experienced that phenomenon.

[142] As his resume shows, Dr. Barrett has served in the past as a Vice-President of the SOGC. In that context, he was asked about the views Dr. Mentacoglou had expressed about pronouncements of the ACOG and the SOGC, and in particular, his contention that these regulatory bodies establish standards in a way that will protect obstetricians from litigation risk. Dr. Barrett was emphatic that they are not there to provide cover for doctors who do not meet the standard of care. As he put it:

[O]ur mission is to develop safe standards of practice and guidelines so that physicians can give the best care to women and their families. We're not, we're not there to go out and help people defend themselves, we're — we produce guidelines so that when people follow these guidelines, there will be less adverse outcomes. Dr. Menticoglou himself has.... worked on guidelines and I'm just — I'm reviewing one his right now that's he's written on, on breech, so I'm, I'm quite surprised he would say that.

[143] Dr. Barrett was asked to opine on the same hypothetical situation, assuming the same facts that had been put to Dr. Mentacoglou during his testimony.[^22] In those circumstances, assuming that Dr. Warwaruk used as much force as he felt that he could without causing damage, Dr. Barrett was emphatic that Dr. Warwaruk’s actions were reasonable. When asked whether Dr. Warwaruk had acted reasonably and whether his actions met the standard of care, Dr. Barrett had a simple two word answer – “Yes, absolutely.”

[144] Dr. Mentacoglou expressed concerns about the application of any traction in circumstances where there is a shoulder dystocia. He opined that the obstetrician should instead clear the posterior arm of the baby, even though it may result in broken bones, because broken bones would heal but a brachial plexus injury would not. It was his view that the standard of care should not permit any traction whatsoever.

[145] Dr. Barrett rejected this contention. His response is important and bears quotation:

I understand exactly where he's coming from, and I've read his article. His point is that if any traction can cause shoulder dystocia, even normal traction as I believed happened in this case, and permanent injury, why don't we just avoid it all together by doing the other manoeuvres, example, the posterior shoulder? And that's what he would have us believe now. The SOGC and other people and myself have thought about this, but the trouble with this is, there's some faults to that logic in my opinion, which is why I don't agree with it... and I don't believe any of the guidelines or societies follow that.

Certainly, it was not the standard of care, and is not the standard of care. The reason is the following: more than 90 percent of shoulder dystocias can be overcome without any injury simply by the gentle traction, which we're trained to do, the McRoberts, as well as the supra-pubic pressure. That resolves more than 90 percent. Some people say 97 percent will be resolved just by this combination, exactly what happened in this case.

Dr. Menticoglou would suggest that we don't do that because a small percentage of those cases end up in brachial plexus injury. He wants us to do the posterior arm only, so I think even in his article, he suggest that in 25 percent, as much as 25 percent, the humerus will break, the, the humerus will break. Now I've done this, and I disagree completely that it's a benign, don't worry about it, its going to heal.

It's an awful event for a mother or for an obstetrician to, to hear and feel the crack of a bone breaking, it's terrible. More than the emotional problem, it's not always benign. Yes, it's true, many times it heals okay, but sometimes if the break of the humerus goes near the artery, there's a, there's a big artery running down all the way to the brachial [indiscernible], if that artery is severed, you can — there are case reports of babies losing hands because of vascular compromise. The last time it happened to me, I remember the conversation clearly because they — the immunologist said to me, you know, it was very close, the artery was fine, you just missed it. So it's not a benign thing to break a humerus. Yes, they usually heal, that's true, but sometimes they don't.

[146] While obstetricians are trained how to break a baby’s humerus in order to achieve a posterior arm delivery in circumstances of shoulder dystocia, Dr. Barrett rejected that as the preferred approach when the series of maneuvers set out in the ALARM protocol will resolve the shoulder dystocia emergency without damage in more than 97 percent of all cases. In his opinion the more sensible approach is to follow that protocol because that will likely resolve the issue, and he said that was why the guidelines do not agree with Dr. Menticoglou’s position. Instead, as Dr. Barrett put it, “we persist in doing the step wise approach, which includes some degree of gentle traction, the McRoberts and the supra-pubic, exactly as happened here.”

[147] Plaintiffs’ counsel cross-examined Dr. Barrett extensively about the maneuvers, whether supra-pubic pressure was properly applied, and whether Dr. Warwaruk used excessive traction.

[148] He agreed that in delivering a child with shoulder dystocia, an obstetrician must act with due car and attention. He emphasized that a doctor must always act in the best interests of the patient, using his best skill according with the standard of care, but he also observed that the standard of care and guidelines of practice and the doctor’s training all take into account risks of injury. Doctor’s need to practice according to the standard of care as they have been trained, and they need to act carefully.

[149] Dr. Barrett did not know exactly how the McRoberts' manoeuvre was performed in this case because he was not present, any more than Dr. Mentocoglou was. However, he assumed from the records that Dr. Warwaruk and the nursing team in this case knew how to do the McRoberts maneuver and correctly performed it, although he did not know whether any or how much traction was used during the McRoberts manoeuvre in this case. Similarly, he assumed from the note in the chart and the answers given on discovery, which described gentle traction, the McRoberts manoeuvre, and the specific application of supra-pubic pressure by two nurses, that all of these manoeuvres were carried out correctly.

[150] However, Dr. Barrett did freely acknowledge that since he was not present, he could not say with certainty that they were conducted correctly. However, it made no difference to him whether one nurse at a time or two nurses together applied the supra-pubic pressure. Plaintiffs’ counsel pressed Dr. Barrett on whether the method of application was correct, but he acknowledged he could not know how the maneuver was performed because he was not there. From his perspective, the important point was that the obstetrician would have been facing the mother’s dilated cervix and simply have asked for supra-pubic pressure to be applied. However, he would not be looking to see exactly where the nurses' hands were located because everyone on the team knew their role. There was no exact or precise point where the nurses’ hands should be located and where the supra-pubic pressure should be applied.

[151] Dr. Barrett did not hear the parents' testimony that there were two nurses, one on each side of Ms. Jones, and that they were pushing on each side on the mother’s abdomen, around the mother’s rib cage, just below the breastbone, during the manoeuvres to resolve shoulder dystocia. Dr. Barrett could not initially recall having read the parents’ discovery evidence, but was later reminded in re-examination that he had read their description as it had been expressed by Dr. Mentacoglou in his December 7, 2018 updated opinion.

[152] In that letter, Dr. Mentacoglou described their evidence and his conclusion:

In this case, it would appear that supra-pubic pressure was inappropriately applied coupled with traction by the doctor. In fact, based on the evidence of both the mother and father it would appear that fundal pressure was being used by two nurses (Mother: question 105-118 and Father question 43-47). The doctor did not document the use of fundal pressure but does document supra-pubic pressure. Supra-pubic pressure is usually done by one nurse (indeed two nurses doing supra-pubic pressure would probably be counterproductive). If fundal pressure was being used after the head was delivered in an attempt to resolve the shoulder dystocia, this was below the standard of care.

[153] Dr. Barrett agreed that the application of pressure by two nurses, one on each side, in the upper abdomen under the breast is consistent with fundal pressure, but since the reference was to pressure below the ribcage, it would not have amounted to fundal pressure. It would not have been correct in these circumstances to apply pressure somewhere in the upper abdominal area, but based on the records, if that had occurred he was certain that Dr. Warwaruk would have stopped it. He said he was bolstered in that view by Dr. Warwaruk’s decades of obstetrical practice, and his experience and training based knowledge about the difference between supra-pubic and fundal pressure.

[154] Dr. Barrett agree that if the parents’ evidence was accepted that pressure was applied at the top of the mother’s abdomen, at the top of the uterus, that would not have been the right thing to do, but he did not agree it would have fallen below the standard of care, and the description of the parents’ evidence would not have changed his opinion, because, as he explained, it was a more complicated question:

Fundal pressure as described in the articles is not the right thing to do instinctively or reflectively. The right thing to do is to push supra-pubically to disimpact the head. If you go back to the original Wood screw manoeuvre, the internal manoeuvre that eventually delivered this baby,… the reason it works is because when you screw a corkscrew the screwing manoeuvre rotates the corkscrew through the, through the narrow [opening].

[155] Dr. Barrett explained that it is not always wrong to apply fundal pressure. In the original 1951 paper in which the Woods screw maneuver was first described, it specifically contemplated the application of fundal pressure as part of the maneuver. In the Woods screw manoeuvre, the doctor would properly ask the nurses to apply fundal pressure at the same time as the doctor was rotating the baby’s posterior shoulder because otherwise the maneuver would not work.

[156] On the other hand, Dr. Barrett acknowledged that if the shoulder was still impacted, fundal pressure could make it worse. Whether fundal pressure is appropriate depends on the circumstances. Nevertheless, while he disagreed that fundal pressure is always improper, Dr. Barrett confirmed that the specialized manouever is difficult to perform and requires very precise timing, so the overall standard of care is not to do it and the ALARM course recommends against using fundal pressure.

[157] In 2004, however, the preference was to apply supra-pubic pressure because it was a safe manouever and would virtually always work, independent of what the obstetrician was doing. Dr. Barrett observed that nurses cannot always see exactly what the obstetrician is doing, so the safest and correct move to apply in 2004 and currently would be to forcefully apply supra-pubic pressure to dis-impact the shoulder dystocia.

[158] Although Dr. Barrett was not familiar with the Baskett and Allen article, he acknowledged that he knew Dr. Baskett well professionally. In their summary of the results of that study, the authors stated that “[o]f the manoeuvres used to deal with shoulder dystocia strong downward traction on the head was significantly correlated with brachial plexus palsy compared with other individual methods of delivering the shoulders.”

[159] Dr. Barrett agreed and emphasized that was why doctors are trained not to apply strong downward traction. Nevertheless, in his view, even this study confirmed the incorrectness of a result-oriented perspective, because even in the three cases in the study where no traction at all was applied, just the McRoberts, Woods screw and the posterior arm manoeuvres, three cases of brachial plexus injury still resulted.

[160] Dr. Barrett accepted Plaintiffs’ counsel’s suggestion that it was more likely than not that the harder a doctor pulls on the baby, the greater the likelihood that an injury would result. However, in his opinion, the points that broke the causation link that counsel was trying to establish were (i) the Canadian experience itself showed a 10% incidence of brachial plexus injury, even where there was no traction applied, and (ii) that was why doctors do not apply strong traction.

[161] Dr. Barrett concluded that the cause of Naleah's partial but permanent brachial plexus injury, on the balance of probability, was the shoulder dystocia. A brachial plexus injury still resulted even though Dr. Warwaruk performed the manoeuvres properly. He was emphatic that the presence of the injury does not imply or unequivocally infer that either the manoeuvres were done incorrectly or that the force was excessive.

[162] Plaintiffs’ counsel challenged him on the basis that his opinions were all based on the assumption that Dr. Warwaruk did not use strong downward traction. Dr. Barrett acknowledged, as he did throughout his evidence, that he was not there, but he responded that the injury was compatible even with circumstances where someone did not apply strong downward traction. It was put to him that he was incapable of finding fault with Dr. Warwaruk or accepting that he could have used too much force. Dr. Barrett chafed at that suggestion and responded strongly:

No, what I'm saying is in the clinical situation you use your training and judgment to use enough gentle traction to overcome with you by your experience and training is sufficient firstly to diagnose the dystocia, and secondly, to overcome the traction, overcome the dystocia. Once you've used that sufficient traction you then use other manoeuvres which is what he did, and that's why I think he managed this case in accordance with the standard of care.

[163] Counsel persisted. Was he was suggesting that any obstetrician, or Dr. Warwaruk, has some sort of carte blanche to use whatever amount of force they choose to use as long as they did not intend to use more? Dr. Barrett was direct and emphatic in his response:

No. I'm saying that when an obstetrician encounters shoulder dystocia we use the force that you've been trained to do in your training, sufficient to overcome the dystocia and when that fails, you don't carry on using too much you use alternative manoeuvres. Like you haven't got a strain gauge on the, on the baby, you can't measure it and you can't measure the baby's susceptibility, and you can't measure the internal forces that are also at play, and we also don't know whether this baby was going to have the injury anyway, as we've discussed. So all those features are, are present at the time, and so you gently go through the step wise procedure that all the societies recommend you do in your best effort to overcome the dystocia.

[164] In conclusion, while acknowledging that he did not and could not know how much force Dr. Warwaruk used, Dr. Barrett repeated that his opinion was based on a description of a sequential series of manoeuvres, a well described pecking order of managing a shoulder dystocia, undertaken by a senior obstetrician who had been engaged in obstetrical practice for 40 years. Dr. Warwaruk was fully aware of what he should and should not be doing, and he described his normal practice, and specifically what he did at that time in the post-operative note that was prepared contemporaneously, in a manner that was entirely compatible with that prior and historic normal practice. Dr. Barrett rejected the suggestion that incorrect supra-pubic pressure was a major component of the injury.

[165] Finally, in response to a question I asked, Dr. Barrett ended his testimony by describing the interactions between the obstetrician and the patient or the nurses where the mother is being asked to push. He acknowledged that it would be counterproductive for the mother to push at certain points in time during the delivery, but he accepted that there could be a misunderstanding in the commotion of the moment. Dr. Barrett acknowledged that there could be an issue if any of the participants in the room did not hear each other correctly. Dr. Barrett’s explanation of the critical and high stress circumstances that are present in a delivery room where a baby is learned to have a shoulder dystocia, provides important context:

So it is one of the most scary, obstetric emergencies that we can encounter. You know that you have a certain time limit to get the baby out. On the other hand you don't want to rush or pull too hard. You know that there are sequential manoeuvres that you have to do, some of which are going to be overcome with a bit of gentle pressure assisted by the mother and some of which are not. So when you think it's time to exert that bit of pressure it makes sense to ask the mother to help you. At times when you're doing a manoeuvre that pushing might be contradicted, so there's an interplay between the obstetrician and the nurses, and the doctor and the patient, as to say, "Okay, don't push" because right now I'm doing a manoeuvre. It could be a dis-impaction manoeuvre, it could be trying to get the posterior arm manoeuvre. On the other hand if the obstetrician thinks they've got it, and you never know you've got it until you've got it, and it's now time to - you have a disimpaction it's time to push then you've got to ask the mother to push. So it's a dynamic process of manoeuvres and traction.

[166] To summarize, Dr. Barrett regarded Ms. Jones’ labour progress as uneventful and within normal limits. Once the second stage of labour started, it was appropriate for Dr. Warwaruk to decide that future attempts at pushing were unlikely to be successful and to commence the delivery of the head with forceps. What followed thereafter was the discovery of a shoulder dystocia complication. It was managed appropriately with the use of the approved maneouvers, all performed in accordance with the standard of care, but nevertheless resulted in the baby sustaining the complication of a brachial plexus nerve injury. The literature is clear that brachial plexus injury can occur even without shoulder dystocia. The presence of the injury does not imply that the shoulder dystocia was badly managed. In summary, it was Dr. Barrett’s opinion that Ms. Jones pregnancy and delivery were managed appropriately, that Dr. Warwaruk met the standard of care, and in any event, that his conduct cannot be shown on the evidence to have been the cause of Naleaha’s injury, but for which she would not have sustained damage.

III. The Issues and Position of the Parties

[167] The evidence in this case relating to Naleaha’s delivery and the permanent brachial plexus injury she sustained calls upon me to decide several issues:

(i) What was the standard of care that could reasonably be expected of a specialist in Obstetrics and Gynecology practising in Windsor, Ontario in 2004?

(ii) Did Dr. Warwaruk meet that standard of care in his management of the delivery of Naleaha Jones-Carter?

(iii) If he did not, was Dr. Warwaruk’s conduct the cause of Naleaha’s permanent brachial plexus injury?

[168] The Plaintiffs advance two theories of negligence. On one theory, the Plaintiffs allege that the nurses assisting with the delivery incorrectly, or inappropriately, applied supra-pubic pressure during the delivery, and that Dr. Warwaruk is responsible for the inappropriate application of that pressure. Secondly, and in any event, they argue that Dr. Warwaruk breached the standard of care by applying excessive traction during delivery in the management of the shoulder dystocia once it presented. The Plaintiffs rely on the fact that the injury has been diagnosed as a partial but permanent brachial plexus injury as the proof of a breach of the standard of care.

[169] On the basis of either the first or the second theory, the Plaintiffs allege that Dr. Warwaruk’s conduct was the cause of Naleaha Jones-Carter’s injury and that he is liable to her in damages.

[170] The Defendant denies both of the Plaintiffs’ propositions. He argues that the evidence does establish to the standard of proof that the application of supra-pubic pressure during the delivery was either incorrectly done, or that it caused Naleaha’s brachial plexus injury. In any event, the Defendant argues that the claim that Dr. Warwaruk applied excessive traction during the management of the shoulder dystocia is not supported by credible and reliable evidence.

[171] The doctrine of res ipsa loquitur has been expunged from our law.[^23] However, it is plain that in cases like this one, we continue to argue about its spiritual legacy. The Plaintiffs deny that they argue from a res ipsa loquitur, result-based or oriented perspective. Nonetheless, they do claim that the only reasonable inference to be drawn from all of the direct and circumstantial evidence in this case is that such an injury would not likely have occurred in the absence of excessive traction on the baby’s head during delivery. The Defendant rejects that position. They say it is not supported by the evidence.

[172] Both of the experts agree that if the traction was excessive, the standard of care would not have been met. The core difference in their positions, which is the central question in this case, is how they get to their differing opinions on whether Dr. Warwaruk met or breached the standard of care.

[173] Dr. Mentocoglou believes and opined that the presence of an Erb’s palsy brachial plexus injury, such as was sustained by Naleaha Jones-Carter, necessarily commands the inference that the force was excessive. However, Dr. Barrett not only says that the force used was not excessive, but also that there can be other causes of brachial plexus injury, and consequently that the fact that a brachial plexus injury occurred in this case does not establish negligence on the part of the physician.

IV. Standard of Care and Burden of Proof

[174] I have recounted the evidence in some detail because of its many discordant elements, but now turn now to consider (i) what the standard of care was that applied to an obstetrician practicing medicine in Windsor, Ontario in 2004, and (ii) whether Dr. Warwaruk’s conduct in delivering Naleaha Jones-Carter on December 30, 2004 met that standard of care.

[175] The standard of care has not changed in any meaningful way over the past century. A good starting point is the well-known definition that Schroeder J.A. provided in 1956 in Crits v. Sylvester.[^24] He reminds us that:

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, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.[^25]

[176] In a 1992 decision of this court, Philp J. adopted the words of Lord Heward, C.J. in Rex v. Bateman[^26] as one of the clearest statements of the standard of care required of a medical practitioner[^27]:

If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to a patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment.... The law requires a fair and reasonable standard of care and competence.

[177] Lord Heward’s description of the standard of care made plain in 1925, as our law does today over nine decades later, that the law does not require perfection. It requires reasonable care and competence.

[178] In the leading decision in Wilson vs. Swanson[^28] the Supreme Court of Canada allowed an appeal against earlier findings of physician liability. It regarded the doctor’s surgical decision in that case to be an exercise of judgment, rather than an act of unskillfulness or carelessness or due to lack of knowledge. Rand J. also recognized[^29], as Dr. Barrett testified here, that every patient has a different susceptibility to injury. So in the case like this where a shoulder dystocia presents itself, the same actions performed the same way by an obstetrician may give rise to different results in the case of different babies, owing to their individual susceptibility to injury.

[179] Moreover, while it is not a position argued to be applicable in this case, where a physician applies his mind to a situation and arrives at a judgment that is subsequently proven to be wrong, or to have unexpected consequences, he or she will not be held liable. An error of judgment does not amount to negligence where the physician appropriately applies clinical judgment.

[180] Medical professionals are to be judged in light of the knowledge that they ought reasonably to possess at the time of the alleged act of negligence. A doctor will not be found liable if the patient’s treatment accords with the recognized medical standards at the time, even in the face of competing authorities. As expressed in Lapointe v. Hôpital Le Gardeur[^30]:

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

[181] Physicians have an obligation to behave and conduct themselves in a reasonably prudent and diligent professional manner in the care of their patients, but they do not have “an obligation of result.” An unfortunate outcome does not constitute proof of negligence and the reduction of the question to one of result rather than means is erroneous.[^31] The case law admonishes judges to be careful not to rely on the perfect vision that is frequently afforded by hindsight, and to guard against working backwards to find negligence after the events have transpired, especially in cases against hospitals and doctors.[^32]

[182] A Plaintiffs’ case that applies an outcome-based retrospective approach and attempts to work backward from the result in order to prove negligence is legally flawed and contrary to established principles. In Fontaine v. British Columbia (Official Administrator), Major J., dismissed the value of the ancient res ipsa loquitur maxim and recalibrated evidential standards in negligence cases in the following words:

26 Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.

27 It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the Plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the Plaintiff has done so, the defendant must present evidence negating that of the Plaintiff or necessarily the Plaintiff will succeed[^33] [My Emphasis].

[183] As Dr. Menticoglou fairly acknowledged in his cross-examination, consistent with the caselaw, doctors have to make judgments and decisions at the time they are confronted with the medical problem but without the foresight of knowing what the outcome is likely or going to be.[^34] Accordingly, physicians may only be judged in light of the knowledge that ought to be reasonably possessed at the time of the alleged act of negligence.

[184] The governing principles also show that and no conduct or error can be imputed to a defendant physician unless it is clearly proven against him.[^35] To do otherwise is to engage in the erroneous logic of after the fact thinking. It is erroneous to conclude that one event must have been the cause of a second, simply because a particular event occurred and was then followed by another.

[185] A number of decisions in this province and in Alberta have considered and rejected that kind of logic when applying the standard of care in obstetrical shoulder dystocia cases. Those cases have recognized that fetal damage can still occur, even where there was excellent management of the delivery and precise execution of appropriate obstetrical manoeuvres. Those decisions have resisted the call to infer negligent application of excessive traction merely from the presence of a brachial plexus injury.[^36]

[186] The evidence of both Dr. Menticoglou and Dr. Barrett in this case establishes that a permanent brachial plexus injury can occur from traction that is less than excessive. Both agree that the use of gentle traction was within the standard of care in 2004. Dr. Barrett also testified that a permanent brachial plexus injury can occur from non-traction related forces. Dr. Mentocoglou acknowledged that as well, but continued to insist that the existence of the injury necessarily shows that excessive traction must have been used. This case is largely focused on the disparity in those positions.

[187] The Plaintiffs bear the burden to establish on a balance of probabilities that it is more likely than not that their loss was caused by negligent conduct on the part of Dr. Warwaruk. I must weigh all of the evidence, direct and circumstantial, to determine whether the Plaintiffs’ have met that burden and established a prima facie case of negligence against Dr. Warwaruk.

[188] If accepted, direct evidence proves a fact without the need for an inference, other than that the witness is telling the truth. In the case of witness, it reflects what the witness perceived or experienced by their physical senses. In the case of documents or records, it reflects the record made at the time about the perception of the witness who created the record. If believed, it resolves a fact in issue. Direct evidence can be powerful because it is the direct product of the personal experience of the witness, but it can also be subject to human frailty, and its uncertainties are its truthfulness, its accuracy and its reliability.[^37]

[189] On the other hand, circumstantial evidence is any item of evidence, whether testimony or exhibit, other than the testimony of an eyewitness to a material fact. If accepted, it may prove a fact based on the inference or inferences that it may permit to be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts, direct or circumstantial, that is or are found or otherwise established by the evidence in the proceedings. It is a conclusion that may but not necessarily must be drawn in the particular circumstances.^38

[190] In this case, there is a combination of the direct evidence of the witnesses, and circumstantial evidence that may arise from their evidence. Like witnesses, the documents and records filed as exhibits provide either direct or circumstantial evidence. It is important in my view to remember, however, to remember when inferences can reasonably be drawn and when they cannot. The only inferences that I may draw in this context are those that I am satisfied reasonably arise based solely on the evidence in this case. As trier of the facts, I am not permitted to draw inferences based on conjecture or speculation.

[191] In determining whether the Plaintiffs have met their balance of probabilities burden to establish negligence and liability, I am required to draw reasonable inferences from the evidence. In particular, I must decide based on my evaluation of the direct and circumstantial evidence, whether (i) it supports the inference that Dr. Warwaruk acted negligently and that it caused Naleaha’s injury, or (ii) that the evidence does not reasonably support that inference, in which case, Dr. Warwaruk did not act negligently. However, even if I find that Dr. Warwaruk breached the standard of care, and was negligent, his conduct will not be compensable unless the Plaintiffs can also establish on the balance of probabilities that “but for” Dr. Warwaruk’s conduct, Naleaha Jones-Carter’s injury would not have occurred.[^39]

[192] Finally, I have reminded myself that it is the cumulative effect of all of the evidence and the reasonable inferences that evidence permits that the Plaintiff must prove on a balance of probabilities in order to establish a prima facie case of negligence. If there is more than one reasonable inference that can be drawn from the evidence then liability will not be proven, because the Plaintiffs will have failed to establish that their theory of the case and the interpretation they seek to put on the evidence is more likely than not, that is, proven on a balance of probabilities.

V. Did Dr. Warwaruk Breach the Standard of Care?

[193] In considering the extensive caselaw that has addressed circumstances like these[^40], I have found the Alberta decision in Nessler v. Colliton[^41] to be the most directly relevant authority. In my view, that decision is instructive because it exhibits circumstances and evidence that is quite similar to the circumstances in this case.

[194] Of course, and not surprisingly, there were facts present there that were not present here. Nessler involved a much more severe brachial plexus injury than the injury in this case. It was also a situation where it took the doctor performing the delivery, a very experienced family physician, considerably longer to resolve the shoulder dystocia that in this case. In that case, Dr. Colliton actually had to progress through the ALARM protocol manoevers twice before the baby was delivered, close to the critical five-minute mark where issues of infant mortality arise. In contrast, it took Dr. Warwaruk three minutes to resolve the shoulder dystocia and deliver Naleaha in this case, but the circumstances of the situation should not be diminished. It was serious enough that Dr. Warwaruk undertook one complete round of the manoevers, the first three of which were unsuccessful in resolving the problem. It was only after Dr. Warwaruk used the Woods screw maneuver and after he moved the posterior shoulder to disimpact the anterior shoulder dystocia, that he was finally able to deliver the baby.

[195] In Nessler the Plaintiffs made additional claims beyond those made here. There was even a partial finding in that case that Dr. Colliton had breached part of the standard of care by failing to make a contemporaneous record of the delivery, a finding that has not been made here.

[196] There was no claim here that Dr. Warwaruk was negligent because he had failed to take steps to reasonably determine the size of the baby and consider performing a Caesarian Section instead. Indeed, in this case, despite Ms. Jones weight gain and gestational diabetes, Dr. Warwaruk had no concerns that the baby was macrosomic, because the Mother was a very tall woman. He was not concerned that a normal delivery would not be possible.

[197] Two other differences between the two cases relate to Dr. Colliton’s alleged failure to properly move through the appropriate maneuvers to free the baby’s shoulder in that case, and her failure to properly record notes of what she did.

[198] In contrast, in this case Dr. Warwaruk testified that he would have moved through the manoevers properly, in accordance with his usual practice, and as was reflected in his post-operative notes. Both expert obstetricians testified that Dr. Warwaruk carried out the correct maneuvers in managing Naleaha’s shoulder dystocia, and that he did so in accordance with the standard of care expected of an obstetrician in 2004.

[199] Both experts agreed that the standard of care permitted the use of traction both to diagnose and to resolve shoulder dystocia. The source of their disagreement was with whether the standard should have permitted the use of traction, either to diagnose or to resolve shoulder dystocia. I will address that issue specifically later in these reasons.

[200] Another difference was in the recording of the events that transpired during the delivery. In the Nessler case, Sulyma J. found that Dr. Colliton had breached the standard of care by failing to prepare her post-operative notes contemporaneously, or at least sooner than three weeks after the delivery, and failing to record critical details of the delivery, including that she did not record what manoeuvers she performed, that she performed them twice, nor did she record facts relating to the baby’s condition at birth. At paras. 172-173, she made the following findings:

172 The importance of timely and proper charting was acknowledged by Dr. Colliton and the other physicians who testified at trial. Opinions differed, however, as to what was timely and proper charting. Dr. Brox was not concerned about the time which elapsed before Dr. Colliton prepared the discharge summary. She did not feel that a three week delay was unreasonable given how notoriously slow doctors are in completing their paperwork and given the chart would only have been required sooner if Ms. Campbell or the baby had been transferred to another hospital.

173 Despite Dr. Brox’s opinion, I find that Dr. Colliton breached the standard of care in terms of when she dictated her notes of the delivery. I was not satisfied with her explanation that she was delayed in dictating the discharge summary as “there was a lot going on,” she was instructing Dr. Briggs Smith and subsequently she had to retrieve the chart from the hospital basement. She was an experienced general practitioner and ought to have attended to both informing her patient of what had occurred and making a record of it. Even she agreed that generally she dictates the summary right after the birth of the baby. There is good reason for that. The fresher the doctor’s memory, the more accurate and reliable the record [My Emphasis].[^42]

[201] This was the exact opposite of the circumstances in this case. Although Dr. Warwaruk had no specific recollection of this case or this delivery, not only in his testimony at trial but at discoveries held ten years ago in 2008, I find that his evidence relative to his usual practices and that he would have followed them is bolstered by the contemporaneity of his preparation of post-operative notes. It is important and enhances the reliability of his testimony, in my view, that it was also Dr. Warwaruk’s usual practice to dictate his operating notes immediately following a delivery. In this case, his “Labour and Delivery Summary” for Ms. Jones was dictated within minutes of the delivery.

[202] Notwithstanding those differences, the two common questions in this case and in Nessler relate to the procedures that were followed. Specifically, there are two common claims in these two cases. They are (i) whether Dr. Warwaruk fell below the standard of care either in failing to direct the nurses adequately regarding the application of supra-pubic pressure or in failing to correct them if the nurses inappropriately applied that pressure, or applied fundal pressure, and (ii) whether Dr. Warwaruk applied excessive traction initially before the shoulder dystocia was diagnosed, or during the performance of the maneouvers that followed that diagnosis.

[203] Before moving to consider those two questions, I would observe that I found there to be an additional third issue raised on the evidence, as it was in Nessler, although neither of the parties focused on it particularly in this case. That is the issue of whether miscommunication may have arisen in the commotion and chaos of the delivery room once Naleaha’s shoulder dystocia was diagnosed, relating to when the mother should assist the obstetrician by pushing and when she should stop pushing. This is important in the context of what was going on and whether there could have been factors other than the alleged improperly applied pressure or excessive traction that could have caused or contributed to Naleaha’s injury.

[204] Ms. Jones’ evidence was that she was pushing through her contractions when she was directed to push. She testified that Dr. Warwaruk did not tell her anything about what he was doing, that he was using forceps or that he was doing maneuvers for shoulder dystocia although I note she had a different recollection at discovery. However, she pushed when she heard him say push. When the nurses were pushing, she was pushing. However, she acknowledged on that point that there was a moment in time when she was pushing while the nurses were pushing, because she thought that had been the instruction, but then Dr. Warwaruk told her ‘No, no, no, you don’t push. Let them push.”

[205] My concern with this evidence is that, in addition to the other medical evidence and expert opinion evidence, it suggests that there may have been a miscommunication between Ms. Jones and Dr. Warwaruk. At a point when she thought she was being told to push, she was actually being told to stop pushing.

[206] I asked, Dr. Barrett at the end of his testimony about these interactions between the obstetrician and the patient or the nurses where the mother is being asked to push. He confirmed that it would be counterproductive for the mother to push at certain points in time during the delivery, but accepted that there could be a misunderstanding in the commotion of the moment. Dr. Barrett acknowledged that there could be an issue if any of the participants in the room did not hear each other correctly.

[207] In my view, this evidence indicates that an additional potential cause for the injury Naleaha suffered could have been incorrect pushing on the part of the mother at a point in time when the nurses were applying pressure and when she thought she was supposed to still push, but then had to be told to stop. It is not a point that is in any way dispositive of the key issues, but it does confirm the evidence of Dr. Barrett and the publications by Dr. Gherman and his colleagues that there can be other endogenous forces that could have played a role here in the injury Naleaha sustained.

A. Was Supra-Pubic Pressure applied in breach the Standard of Care?

[208] One of the theories of negligence advanced by the Plaintiffs was that Dr. Warwaruk fell below the standard of care, either in failing to direct the nurses adequately regarding the application of supra-pubic pressure or in failing to correct them, if the nurses inappropriately applied that pressure. The experts agree that after the delivery of Nalaeaha’s head when the anterior shoulder was still impacted, it would be below the standard of care for Dr. Warwaruk to have ordered fundal pressure, as opposed to supra-pubic pressure.

[209] I find that the Plaintiffs have not established this theory of negligence on a balance of probabilities. There are two reasons I have reached this conclusion, one a less important procedural reason, and the other factual and substantive.

[210] In their original statement of claim, prepared by other counsel, the Plaintiffs admitted that Dr. Warwaruk ordered the nurses to apply supra-pubic pressure to resolve the shoulder dystocia. They admitted that the pressure that was applied by the two assisting nurses was supra-pubic pressure. Those paragraphs in the statement of claim are clear and unambiguous. They seem plainly to be admissions that it was supra-pubic pressure, not fundal pressure, that was ordered and that was applied.[^43]

[211] The presence of those admissions suggest that the Plaintiffs may not previously have focused on the application of obstetrical pressure during the delivery as a breach of the standard of care. That changed at trial, perhaps in response to the parents’ testimony. However, even before then, the record shows that the issue of pressure was raised in 2008, as evidenced by some of the answers given by Ms. Jones and Mr. Carter to questions asked on discovery.

[212] Defence counsel argued, correctly in my view, that in order to now advance a “new” or “revived” theory that fundal pressure was improperly ordered or applied, these admissions that it was supra-pubic and not fundal pressure that was ordered and applied, should have been withdrawn.[^44] Given the low threshold that applies on a motion to amend pleadings, or on seeking the Court’s leave, the defendant should have been given formal notice by way of a motion to amend pleadings that the Plaintiffs’ position as reflected in their pleadings had changed.[^45] The Plaintiffs certainly had ample time to withdraw these admissions and/or to amend their pleading in the ten years that passed between discovery and trial, but they did neither. Neither did they request an amendment to their pleadings during this trial, an amendment that it was open to me to grant.

[213] More importantly, and apart from that procedural deficiency, in my view, the record before me does not provide an adequate factual foundation on which to find either that fundal pressure was applied, or more importantly, that it was the cause of Naleaha’s injury. The contemporaneous records of the delivery clearly indicate in numerous places that it was supra-pubic pressure that was ordered and applied.[^46] The delivery records make no mention of fundal pressure. Dr. Warwaruk emphasized in his evidence that he understood the risks of fundal pressure after the delivery of the head, and that he would never have ordered fundal pressure in these circumstances.

[214] Ms. Warner’s evidence does not assist on the subject, apart from her recollection of two nurses being partially up on the bed, but she could not see the nurses’ hands or what they were doing. She assumed that they were “trying to help get the baby out” because “it had been a long time.” They were on the bed for about a minute and then Naleaha was born.

[215] Although I accept that Ms. Jones and Mr. Carter testified honestly and to the best of their recollection that the nurses applied pressure to Ms. Jones’s “rib area”, “stomach”, or “upper abdomen,” I find that there are inconsistencies in their evidence that call its reliability into question, and those concerns are enhanced when I consider the contemporaneous records of the delivery.

[216] As Sulyma J. noted, at para. 190 in Nessler, the lay witnesses in that case gave similar evidence to that given by Ms. Jones and Mr. Carter in this case. As in this case, they said that they observed a hand over hand CPR-type of action, and that the nurses were pushing very hard on the top of the mother’s stomach, just under the breastbone.

[217] I accept that Ms. Jones and Mr. Carter were describing their recollection of the events to the best of their ability, but they were both testifying based solely on their memory of events occurring 14 years previously. Both agreed that the situation in the delivery room was chaotic, tense and fast moving. Each, in their own way, described a flurry of activity involving persons coming into the room and nurses getting up on the bed to apply pressure. Each described their impression that something bad was happening, but their recollection of timing and ordering of steps is confused and at least partially contradictory.

[218] Both witnesses were inconsistent regarding the timing of various maneuvers in the delivery. Ms. Jones believed she could feel Dr. Warwaruk “pulling” the baby out after he had already used forceps to facilitate the delivery of the baby’s head. During cross-examination, and given her discovery evidence, however, Ms. Jones acknowledged that she was not sure if the pulling sensation occurred while the forceps were being used or at some other time.

[219] Mr. Carter testified in cross-examination that he could not remember when the forceps were used in Naleaha’s delivery, but in his examination for discovery, Mr. Carter had stated that the nurses applied the pressure to Ms. Jones’s stomach before the forceps were used. But he also acknowledged that his memory at trial differed from his memory of the events during his examination for discovery, and that he “forgot things after the years went on.” His memory also differed from the notes made by the nurses during the delivery, and he said he disagreed with those records, and the record prepared by Dr. Warwaruk also indicated that events happened in the reverse order from Mr. Carter’s memory.

[220] Against that background, while I accept that it is their best recollection, I find that I cannot rely on Ms. Jones’ and Mr. Carter’s evidence of where a nurse or nurses were pushing, and their evidence of the ordering and sequence of maneuvers performed. In my assessment, there was an emergency, a lot of steps were being taken by the medical staff within a very short period of time and these witnesses were distressed, by their own admission, even to the extent that Ms. Jones actually passed out in the final moments before Naleaha was born.

[221] Ms. Jones and Mr. Carter are lay-persons, and they were experiencing a delivery for the first time. Of their first-born child. They had never been through this process before. They knew nothing of what to expect or of what could happen. As in Nessler, however, I am concerned that these witnesses lacked the essential medical context to appreciate the different maneuvers that were being employed in a matter of three minutes in response to the emergency diagnosis of shoulder dystocia. Further, while Plaintiffs’ counsel may disagree with it, when the evidence of the lay witnesses was put to Dr. Barrett, in his expert opinion the pressure they described did not amount to fundal pressure.

[222] Based on the evidence of his positioning between Ms. Jones’ legs, Dr. Warwaruk would have had a clear view of the nurses. Dr. Warwaruk was certain that he did not observe the application of fundal pressure, not because of actual recollection, but because if he had seen the nurses applying fundal pressure or applying supra-pubic pressure incorrectly, he testified that he would have immediately instructed them to stop. His evidence, that it was possible that two nurses could be applying supra-pubic pressure to disimpact the anterior shoulder from the symphysis pubis by pushing directly downwards, was also supported by the expert testimony of Dr. Barrett. It was Dr. Barrett’s view that supra-pubic pressure could be administered by two nurses, either sequentially or simultaneously. He was not concerned at all that two nurses applied supra-pubic pressure in this case.

[223] I wish to specifically note at this juncture that it might have been helpful if any of the nurses involved in Naleaha’s delivery had testified here. Regrettably, no nurses were called to testify in this case by either party, no doubt since the initial action against the hospital for allegedly negligent conduct by the nurse’s was dismissed.[^47] Nevertheless, there was un-contradicted evidence that the staff at the hospital were senior obstetrical nurses, well versed in the procedures required to manage shoulder dystocia. Indeed. Ms. Jones testified that she was impressed that the nurses were knowledgeable, experienced, and seemed to know what they were doing. Dr. Warwaruk and the nurses who were assisting in the delivery all knew it was improper to apply fundal pressure under the circumstances, and I am not persuaded that they did. In the result, I find that I cannot conclude from the evidence as a whole, either that fundal pressure was applied, or that the supra-pubic pressure that was ordered was incorrectly applied.

[224] Regardless, even if supra-pubic pressure was inappropriately applied, and I have specifically found that it was not, the Plaintiffs have not established how this would amount to a finding that Dr. Warwaruk breached the standard of care, or equally importantly, that it was the cause of Naleaha’s brachial plexus injury.

[225] The Plaintiffs’ expert witness, Dr. Menticoglou, was clear in his evidence that the only breach of the standard of care that he could identify was the use of excessive traction, either during the diagnosis of shoulder dystocia, the McRoberts maneuver, or the application of supra-pubic pressure. He did also say that the application of fundal pressure would have been a breach, but he did not identify the alleged improper application of supra-pubic pressure as a breach of the standard of care in this case. More importantly, even Dr. Menticoglou agreed that Dr. Warwaruk was entitled to rely on the obstetrical nurses to administer supra-pubic pressure if it was ordered, and to administer it correctly.

[226] Even if I had found that fundal pressure was used after the delivery of Naleaha’s head, or that supra-pubic pressure was incorrectly applied, the Plaintiffs have led no evidence that “but for” the existence of that pressure, the injury would not have occurred. The Defendants correctly state in their summation that no expert provided this opinion. As such there is no foundation for a causal link to be established to a balance of probabilities standard. To conclude that such a link was present and would establish liability and an obligation on the Defendant to compensate the Plaintiffs would be entirely speculative in my opinion. Our law will not visit liability and damages on a person based on speculation.

B. Did Dr. Warwaruk Apply Excessive Traction?

[227] It was plain from the first day of the trial that the key issue in this case was whether Dr. Warwaruk used excessive downward lateral traction during Naleaha’s delivery. The Plaintiffs have the burden, on a balance of probabilities, to establish that it was more likely than not that the Plaintiffs’ loss was caused by Dr. Warwaruk’s negligence.

[228] The Plaintiffs say that Dr. Warwaruk negligently caused Naleaha’s permanent brachial plexus injury with excessive traction. They say that excessive downward lateral traction is the “most plausible and likely reason” for Naleaha’s permanent brachial plexus injury.

[229] Each case must be determined on its own facts, but there is no doubt that the experts agreed that the application of excessive traction on a baby’s head during a shoulder dystocia delivery is below the standard of care, because brachial plexus nerve damage can occur if the nerves are overstretched from pulling the baby’s head toward the floor (downward lateral traction). The injury can range from minor bruising to complete rupture of the nerve from the spinal cord. While the standard permits the application of more traction if the baby is in life threatening distress and after all maneuvers have been tried unsuccessfully at least once, if not twice, those concerns do not appear to have been present in this case.

[230] In medical negligence actions sometimes there is little or no direct evidence that a doctor was negligent, but Fontaine v. British Columbia (Official Administrator)[^48] shows that while a result based analysis is no longer permitted, it remains open to me to draw inferences from circumstantial evidence that may support findings of negligence.

[231] In giving their expert opinion, the experts infer what happened in that delivery room and what Dr. Warwaruk did, from the facts that emerge from all of the evidence, direct and circumstantial, including the resulting injury. I must engage in the same process, not as an outcome-based retrospective approach, but simply as the way in which to deal with the direct and the circumstantial evidence in the fact-finding exercise.

[232] As previously discussed, I may draw inferences where appropriate based on facts as I find them, and use and weigh them, together with the balance of the evidence, to make findings of fact on whether Dr. Warwaruk breached the standard of care. If I am satisfied that it is reasonable to draw an inference of negligence from the facts as I find them, I must then determine whether the defence has presented sufficient evidence to negate the inference, or to cause it to be just one of several reasonable inferences. If I am not satisfied that it is reasonable to draw an inference of negligence from the facts as I find them, then the Plaintiffs’ case cannot succeed.

[233] In this case there was direct evidence and circumstantial evidence adduced through witness testimony, medical records, medical literature and diagrams. In particular, counsel for the Plaintiffs asserts that there is circumstantial evidence in this case which can and should be used to find that Dr. Warwaruk used excessive force in delivering Naleaha, based on the injury she suffered. They contend that there is no other plausible explanation as to why Naleaha suffered a permanent brachial plexus injury, other than the application of excessive downward lateral traction during the delivery.

[234] The Plaintiffs’ point to the direct evidence of Naleaha’s aunt and father that the maneuvers performed during Naleaha’s delivery were not done according to accepted standards, evidence that they say should be preferred over the circumstantial and documentary evidence contained in the records. However, I have found their direct evidence presents reliability concerns that are not removed by any of the other evidence. I found, based on the reasons set out above, that the evidence of the parents suffers after so many years from the human frailty of lost or newly “remembered” detail, many years after the events,[^49] and in fact, its reliability is further called into doubt by the hospital records prepared at the time.

[235] Mr. Carter testified that he could see in Dr. Warwaruk’s face that something was wrong and he said that he could tell from Dr. Warwaruk’s face that he was straining, “like he was pulling when he was trying to deliver Naleaha.” However, Mr. Carter only remembered that observation in the years since discoveries were held in 2008, and the first time he mentioned that observation was at this trial. In any event, even if Mr. Carter did perceive a particular facial appearance on Dr. Warwaruk’s face during the delivery, and this is the only evidence of it, I do not find that new recollection to be sufficiently reliable to infer that the reason for a facial appearance was that Dr. Warwaruk was applying excessive traction during the delivery.

[236] In contrast, the Plaintiffs claim there was “only circumstantial evidence” that the maneuvers “may” have been done according to the ALARM standard based on Dr. Warwaruk’s evidence that he followed that standard throughout his years of practice. I find this suggestion troubling insofar as it suggests that the evidence of the parents should be preferred because it is direct, when it is well known that the law treats both direct and circumstantial evidence equally. Apart from the fact that circumstantial evidence is no better or worse than direct evidence, in my view, it also ignores the importance of Dr. Warwaruk’s post-operative delivery note prepared very shortly after the delivery was completed. That post-operative note and the other medical records created contemporaneously, as the delivery proceeded and shortly thereafter, provide strong evidence of what actually happened during this delivery and support Dr. Warwaruk’s evidence as to what his usual practice was.

[237] To determine the key issue of whether Dr. Warwaruk used excessive downward lateral traction during Naleaha’s delivery, I have examined the medical evidence, the experts’ evidence and finally, Dr. Warwaruk’s evidence, and set out my findings on each of those bodies of evidence in the following paragraphs.

1. The medical evidence

[238] One certain conclusion that arises from the medical evidence in this case is that an injury to a baby’s brachial plexus that results from shoulder dystocia during childbirth is not a simple, but rather quite a complex phenomenon. Indeed, I find that complexity to be one of the factors that precludes me from inferring that excessive traction must have been used, simply because a permanent brachial plexus injury occurred. Neither, in my view, is it possible to conclude on the basis of the medical evidence that “but for” the traction applied by Dr. Warwaruk during Naleaha’s delivery, she would not have suffered a permanent brachial plexus injury. I find that the medical evidence established that when a shoulder dystocia is encountered, many different forces and factors come into play. Certainly the force of traction may be one of them, but it is far from the only one.

[239] The experts in this case agree that the force that a physician applies during a delivery cannot be measured. In Dr. Mentocoglou’s opinion, it should be assumed that obstetrical brachial plexus injuries are caused by excessive traction. However, the problem with this result oriented conclusion, as Dr. Barrett testified and as the authoritative literature shows, is that the brachial plexus is also subjected to significant “endogenous” forces during labour and delivery even before the physician may apply any traction to the baby, including maternal expulsive efforts and contractions.[^50]

[240] Both experts also agreed that each fetus has its own injury threshold. That conclusion is also supported by the obstetrical literature.^51 The same amount of traction that a physician may use with no adverse consequences in numerous previous deliveries can cause injury if the baby is particularly susceptible to brachial plexus nerve stretching. As Dr. Gherman and his colleagues conclude:

Our data, taken together with the preceding reports, provide several lines of evidence to show that not all Erb’s palsies are traction related. Rather, an in utero insult perhaps combined with a susceptibility to pressure or traction may be etiologic [My Emphasis].[^52]

[241] The Plaintiffs invite me to draw an inference from the whole of the evidence that the amount of force that was used to deliver Naleaha was excessive, but in my view, the inference I am asked to draw lacks the required evidentiary foundation. Certainly it is admitted that traction was applied, but I can find nothing in the record that persuasively allows a reasonable inference of excessive traction to be made. Further, even if I had found that Dr. Warwaruk used “excessive” traction to deliver Naleaha in a manner that fell below the standard of care, and I have not, the evidence does not support a finding that “but for” that excessive traction, the injury would not have occurred.

[242] Given that each baby has a unique injury threshold, just as one cannot measure the force used, so too one cannot know how much force was required to cause an injury to Naleaha’s brachial plexus. In my view, the Plaintiffs have not established either that excessive traction was used, or that that “but for” the traction that was used, whether it was” excessive”, or “gentle”, or “minimal” to use Dr. Warwaruk’s language, the brachial plexus injury would not have occurred. Dr. Barrett’s evidence, the literature,[^53] and Dr. Menticoglou’s own experience[^54] all establish that Naleaha’s injury may have been caused by “endogenous forces” or by a “combination of endogenous forces and traction.”

[243] It was argued that the article by Drs. Baskett and Allen on Shoulder Dystocia provides statistical evidence that “strong downward traction” is the most likely cause of the injury.[^55] I found this argument unpersuasive, first because there is no evidence here of strong downward traction, but also because the same literature relied on for that proposition indicated that 10 percent of cases where no strong downward traction was applied still resulted in a brachial plexus injury.[^56]

[244] Neither do I accept the Plaintiffs’ contention that that this study establishes that it is more likely than not that traction was the cause of the injury, since it was only the minority of cases where no brachial plexus injury resulted. This inquiry and the determination of whether a physician was negligent in the particular circumstances of a particular case is not an exercise in statistical theories or probabilities. The Plaintiffs in this case must establish that this injury resulted from excessive traction. That question is incapable of being determined as a mere consequence of the application of statistical probabilities to the facts of this, or any individual case. I find that I am unable to draw this inference based on the authority relied upon, or that it adds weight to the Plaintiffs’ negligence theories.

[245] Even if it were possible for me to infer the amount of traction that was used based on the nature of Naleaha’s injury, contrary to the Plaintiffs’ submissions, I find that careful regard to the evidence of the actual nature of the injury in this particular case does not, prima facie, support the Plaintiffs’ theory or the inference I am asked to draw that “excessive” traction was used. Indeed, without determining whether the traction applied was “excessive”, “minimal”, or “gentle”, the evidence of the nature of Naleaha’s injury, while serious and permanent, suggests that less traction was used because Dr. Miller said that the injury was only partial.

[246] Dr. Menticoglou was asked to assume that Naleaha had a “permanent” and “severe” brachial plexus injury, but he was not provided with Naleaha’s medical records and he acknowledged that he had no information regarding the number of Naleaha’s nerves that were impacted.

[247] The Plaintiffs’ theory, based on Dr. Menticoglou’s evidence and the 1905 study by Clark, Taylor and Prout[^57], is that as more force is applied to the baby’s head, more nerve roots are affected. In that cadaver study which Dr. Menticoglou referred to in his expert report, the authors explain that as the brachial plexus was stretched during the testing, it was invariably the first (and longest) nerve at C5 that would be injured first, then C6, C7, C8, and T1 in that order, depending on the amount of force and the stretch involved.

[248] Logically, as more force is applied, a sequential stretching and potential avulsion of each of the nerves in the brachial plexus can follow, starting at the C5 vertebrae, and potentially extending all the way to the C8 and the T1 vertebraes.[^58] Both experts agreed that the harder you pull the more likely it is to cause injury to the brachial plexus nerves. This makes sense where the mechanism of injury can be shown to have been excessive downward lateral traction, but as Dr. Barrett emphasized, it is for that very reason that obstetricians are trained not to pull too hard. Both experts also agreed that the manoeuvres were created to resolve the shoulder dystocia emergency without using excessive downward lateral traction, and thereby avoid causing injury to the baby. It appears those maneuvers are largely statistically successful, because only a very small number of shoulder dystocia babies suffer a permanent injury.

[249] After birth Naleaha had left arm paresis (with weakness, an inability to lift her arm. She was noted to have a flaccid left upper limb, with no movement of the hand, shoulder or elbow. There is no question that Naleaha’s injury is permanent. All of the medical records, as well as Dr. Miller’s evidence, establish that Naleaha incurred an Erb’s-type palsy, but it is one that residually involves only the C5 and C6 nerve roots of the upper brachial plexus.[^59]

[250] Dr. Miller testified that Naleaha initially suffered an injury across the entire plexus because there was evidence that her entire arm was paralyzed after birth, but he also testified that the lower nerves recovered. As such, she was left with a partial but permanent brachial plexus palsy arising from C5 and C6, a so-called “classic” Erb’s Palsy. Further, it also resulted in a malformation of her shoulder socket, permanent weakness, wasting muscles, and a shortened arm, all of which combine to create a permanent functional impairment. However, the evidence also showed that there has been improvement in her condition, which was why Dr. Miller described her injury as permanent, but only partial.

[251] I would not wish to be seen to diminish the severity of Naleaha’s injury or its impact on her life, but at least to the extent that the evidence showed that more forceful traction will cause a more severe brachial plexus injury, the ultimate severity of the injury does suggest lower tractional force. In the result, Naleaha was not left with the type of very “severe” injury such as was sustained by Brooklyn, the child Plaintiff in Nessler v. Colliton, and that is associated with additional involvement of the C7, C8 and T1 nerve roots.

2. The expert evidence

[252] The Plaintiffs rely on the evidence of Dr. Menticoglou in respect of both the standard of care and causation. The main thrust of Dr. Menticoglou’s opinion is that one can infer that Dr. Warwaruk used excessive traction in Naleaha’s delivery solely from the fact that a permanent brachial plexus injury occurred.

[253] In Dr. Menticoglou’s opinion, it is more likely than not that Dr. Warwaruk used excessive downward lateral traction during his attempts to resolve Naleaha’s shoulder dystocia. Dr. Barrett disagrees. As such, I must consider their opinions, the foundations upon which those opinions rest, and determine the standard of care and whether it was met.

[254] The Plaintiffs submit in this case that I should infer that excessive traction was used due to the presence and permanent nature of Naleaha’s injury. They deny that they are relying on a result-based argument, but instead claim that the conclusion they ask me to reach is the only reasonable inference. However, I find that position is not only inconsistent with the medical evidence that was adduced at this trial, but is also contrary to established principles of tort law – as distressing and heartbreaking as the result may be, our law is clear that the presence of the result does not mean that the standard of care was breached.[^60]

[255] It was plainly evident that Dr. Menticoglou worked backward from the result. When asked whether he used the fact that there was a permanent brachial plexus injury to define excessive traction and a breach of the standard of care, he admitted that was correct, but this approach is contrary to established legal principles.[^61]

[256] I was also surprised at some of Dr. Menticoglou’s responses to questions, and found him to be somewhat cavalier in his opinion on the standard of care. He admitted that he judged Dr. Warwaruk based on what he thought the standard of care ought to be, rather than what it truly was. He conceded that he holds a minority view in the medical community regarding the appropriate means to respond to shoulder dystocia and that he is “at odds with probably the majority of obstetricians in North America” in his view that brachial plexus injuries are almost invariably caused by traction

[257] Nevertheless, as one exchange with counsel showed, and as Dr. Menticoglou admitted, he is continuing to advocate or “making the case” for his own preferred standard of care, one that would permit no traction whatsoever:

Q: The word ‘excessive,’ particularly in relation to Dr. Warwaruk, is irrelevant. It’s the traction used that resulted in the permanent brachial plexus injury that is a breach of the standard of care?

A: Yes, and that’s why I think the standard of care should be changed.

[258] Ironically, however, even his preferred standard of care involved risk and Dr. Menticoglou conceded that his methods were more difficult to perform, and that they would likely result in an increased number of broken bones in newborn infants. More importantly from my perspective, and as Dr. Barrett emphasized in his evidence, Dr. Menticoglou’s preferred standard also carried a considerably increased risk of arterial damage and potential fetal mortality arising from the breaking of bones.

[259] Both experts agreed that the amount of traction to be applied to a baby is a matter of judgment, and that it is “very difficult for an obstetrician to judge between gentle traction and that which is enough to deliver a baby.” In his own experience, Dr. Menticoglou has delivered babies using what he perceived to be “gentle” traction that he thought was well within the standard of care, and yet a permanent brachial plexus injury occurred.[^62]

[260] That possibility is exactly what has caused Dr. Menticoglou to conclude that “any” amount of traction is harmful, and as his publications show, to advocate for a change in the standard of care.[^63] Dr. Barrett agreed with Dr. Menticoglou that a permanent brachial plexus injury could occur even when gentle traction was used, but he strongly disagreed that these factors should cause a change to the standard of care.

[261] Ultimately, returning to the issues that are alive in this litigation, both Dr. Menticoglou and Dr. Barrett agreed that the use of gentle downward traction during the delivery of the baby’s head, the use of the McRoberts maneuver, the application of supra-pubic pressure, and the use of the Woods screw maneuver, were all within the standard of care in 2004. While I do not accept that subjective belief is the relevant test, Dr. Menticoglou even went so far as to agree that if Dr. Warwaruk believed that he was using safe and gentle traction – or believed that he was “not pulling hard” – in the delivery of Naleaha’s head, the use of the McRoberts maneuver, and the application of supra-pubic pressure, then he met the standard of care in 2004.

[262] Despite those conclusions, the Plaintiffs rely on Dr. Menticoglou’s opinion to support their contention that Dr. Warwaruk must have used excessive traction at “some point” during Naleaha’s delivery, simply because a permanent brachial plexus injury occurred. As such, they argue excessive traction must have been applied, either during the diagnosis of the shoulder dystocia, or in carrying out the McRoberts maneuver, or during the application of supra-pubic pressure, or perhaps during the Woods screw maneuver.

[263] I cannot accept this position or this opinion because I find that it is not grounded either in the facts or in law. As testified by Dr. Barrett, the medical records show that Dr. Warwaruk moved through the prescribed maneuvers in a reasonable and competent manner, once shoulder dystocia was diagnosed. The medical records do not support any inference of a breach of the standard of care.

[264] In summary, I find that no reasonable inference of negligence can be drawn from the fact of Naleaha’s partial but permanent brachial plexus injury because the evidence of both expert witnesses and the authoritative medical literature introduced as evidence at this trial evidence shows that this injury could have been caused by endogenous forces or by any amount of traction, including traction that the experts agree was within the standard of care. Factually, the studies of Drs. Gherman, Ouzounian, and Goodwin reflected in Exhibit 9 show that “the mere occurrence of brachial plexus injury should not therefore be taken as prima facie evidence of medical negligence.”[^64]

3. Dr. Warwaruk’s evidence

[265] Finally, I turn to consider the evidence of Dr. Warwaruk. He had no specific recollection of this delivery and could only testify in his evidence to his usual practices over four decades of obstetrical practice in Windsor.

[266] Where a physician has no specific recollection of his dealings with a patient, he or she is entitled to testify as to what was their ordinary or invariable practice. The case law shows that I am entitled to give significant weight to evidence of a physician’s usual practice.[^65] Moreover, as Nolan J. found in Turkington v Lai[^66], in the not unusual circumstances of medical malpractice litigation where a physician, like Dr. Warwaruk, may no longer have any specific recollection or memory of the specific events, such evidence can also be “considered strong evidence that the physician acted the same way on the same day in question.”

[267] Dr. Warwaruk testified that he would not have used excessive traction in his delivery of Naleaha. His usual practice was to use only as much traction as was necessary to accomplish what he intended to accomplish (i.e. to overcome the shoulder dystocia) without damaging the brachial plexus. He testified that his usual practice was to use “minimal” traction or “only enough that was considered safe,” and never to use excessive traction

[268] Plaintiffs’ counsel suggested, unfairly in my view, that Dr. Warwaruk had acknowledged exceeding the ALARM standard of “gentle traction”, which may be used during correct maneuvers. That suggestion was made on the basis that Dr. Warwaruk chose to use the word “minimal” in his description of the force of traction that he would have used, rather than having used the magic word, “gentle”, but I reject that submission.

[269] I found Dr. Warwaruk to be credible, honest, and forthright in his testimony. Recognizing that he has no specific memory of this delivery, he went so far as to accept the suggestion of Plaintiffs’ counsel that it was possible that he could have used excessive traction in this delivery. He very fairly allowed that answer, even though his 40 year practice, the standards he had consistently followed over those years, and his collective memory of all the deliveries he had done, caused him to be unequivocal that he would never use excessive traction. He would only have used the “minimal” required to get the job done without causing damage. So, while it may have been possible that excessive traction was used, Dr. Warwaruk continued to reject that it was probable, and in my view, his evidence was unshaken in cross-examination. I can find no reason to disbelieve Dr. Warwaruk’s testimony, and no reliable direct or indirect evidence that Dr. Warwaruk diverted from his usual practice in this case.

[270] In 2004, Dr. Warwaruk was an experienced obstetrician who appreciated the risk of a potential brachial plexus injury. He well understood the potential dangers of applying too much traction. He was familiar with the maneuvers to overcome this obstetrical emergency and had employed all of them in the past, most likely on a number of occasions given the statistical likelihood of the number of times he would have seen shoulder dystocia over four decades of practice.

[271] There is no evidence to suggest that Dr. Warwaruk panicked in this particular case. There is no evidence, apart from Mr. Carter’s evidence that he pulled too hard. Mr. Carter testified that he could see “straining” in Dr. Warwaruk’s face, but I do not find this evidence reliable. It is unreliable because the first time he mentioned it was at this trial, fourteen years after the day Naleaha was delivered. Mr. Carter acknowledged in cross-examination that he had not remembered this “strain” on the doctor’s face during his examination for discovery ten years earlier and had never mentioned it before this trial. Rather that this was an aspect of the delivery he had only remembered afterwards.

[272] It is well known and accepted that what a witness said closer to the events is more reliable and that less weight should be given to recollections alleged to have arisen later, for the simple reason that human memory becomes less reliable with the passage of time.

[273] Further, this is not a case where there was any delay in preparing his post-operative notes, as there was in Nessler. Instead, it was Dr. Warwaruk’s evidence, supported by the contemporaneous medical records he prepared and that the nurses independently prepared, that he used the appropriate maneuvers – including the McRoberts maneuver, the application of supra-pubic pressure, and the rotation of the posterior shoulder to the anterior position (i.e. the Woods screw maneuver) – in order to disengage the shoulder dystocia that he was confronted with and safely deliver Naleaha. In performing these maneuvers, I find that there is no cogent evidence that Dr. Warwaruk failed to meet the standard of care.

C. Conclusion

[274] As the Fashola decision instructs[^67], apart from the flaws involved in working backwards from the result, I am unable to find that the evidence adduced at this trial provides an adequate foundation on which I could reasonably infer that excessive traction was used.

[275] Sulyma J. reached the same conclusion in Nessler. In my view, for all the similarities and reasons I have outlined, that decision is entirely applicable to the circumstances in this case, even though it actually involved a more severe brachial plexus injury than the injury in this case, and even though there was a partial finding in that case that Dr. Colliton had breached part of the standard of care, a finding that has not been made here.[^68]

[276] There is another aspect of that case and the observations of Sulyma J. that I find to be equally relevant here. In that case, the court distinguished circumstances such as these from cases where the evidence makes it clear that something improper has happened. In Hassen v. Anvari[^69] and Chasse v. Evenson[^70], for example, both courts found the presence of concrete evidence that permitted the reasonable inference to be drawn that a mistake had been made or something improper had been permitted to occur. In Hassen, it was the presence of a cut to the patient’s aorta that occurred during a hiatus hernia operation. The presence of that injury showed that the surgeon had made a mistake and was responsible for the cut to the patients’ aorta. In Chasse, an obstetrician had performed a sterilization of a woman using a clamp described as a fishy clip, but when the woman later became pregnant, the x-ray evidence showed that the clamp had fallen off her right fallopian tube and was lodged in her abdomen. In both of those cases, the court found that the circumstances justified an inference of negligence on the part of the physician, which then called upon the defendant to adduce evidence that would neutralize the inferences that had been drawn.

[277] In this case, I have considered the medical evidence, the expert opinions, the extensive obstetrical literature that was adduced at this trial, and I have considered and evaluated the reliability of the evidence of the parties, Ms. Jones, Mr. Carter and Dr. Warwaruk. In rejecting the Plaintiffs’ argument that excessive traction can be inferred from Naleaha’s injury, I have weighed that evidence in this case as Sulyma J. weighed the expert evidence in Nessler. She was troubled with the expert’s conclusion in that case that the severity of the injury itself indicates that excessive traction was applied. So too I have been troubled by Dr. Mentocoglou’s opinions in this case, because it was plain and he acknowledged that he used the fact that there was a permanent brachial plexus injury to define excessive traction and a breach of the standard of care.

[278] I do not accept Dr. Menticoglou’s evidence that Dr. Warwaruk breached the standard of care because the medical and other expert evidence shows that not all brachial plexus injuries involve excessive traction, nor can they all be attributed to negligence. That view is inconsistent with Dr. Barrett’s evidence which I do accept and it appears to be inconsistent the balance of the obstetrical literature. I do not deny Dr. Menticoglou’s prerogative to hold the opinions that he does, derived from his lengthy career in obstetrics. He is entitled to hold those views and advocate for a change to the standard of care.

[279] However, I do not accept that those views inform what the standard is at present, or as it was in 2004, nor can they permit a reasonable inference of negligence to be drawn when the evidence establishes to my satisfaction that the delivery and all the manouever were conducted properly, and there is no persuasive evidence of anything improper having occurred.

[280] In this case, Ms. Jones had an uneventful first stage of labour. Once she entered the second stage, she was trying to use her own efforts to push the baby out, encouraged by the doctor and the nurses, but she was unable on her own to rotate the back of the baby’s head from a “transverse” position to an “anterior” position. That position, where the baby’s head is down and the body is facing towards the mother's back, is the best position for the baby to be in to pass through the pelvis. Consequently, Dr. Warwaruk applied Tucker-McLean forceps and was easily able to accomplish the desired rotation. At this point, the baby was still entirely within the mother’s womb. Because he detected rather extensive molding of the baby's head, Dr. Warwaruk removed the Tucker-McLean forceps and instead applied Simpson’s forceps. Seconds later, he delivered the baby’s head with the assistance of those forceps.

[281] It was at that moment that the medical emergency of a shoulder dystocia became evident. Dr. Warwaruk did not panic. He calmly started to move through the steps he knew the situation required. First, he utilized the McRoberts maneuver in an attempt to rotate the baby’s posterior shoulder to the anterior position. This was not initially successful, so he proceeded to the next step, and supra-pubic pressure was applied by both assisting nurses. That manouever also appears to have been unsuccessful to disimpacting the shoulder, because he then rotated the posterior shoulder under the symphisis (the Woods screw manouever) and thereafter the baby was delivered without further difficulty. Dr. Warwaruk’s indication right after the delivery that the baby’s clavicle may have been broken also shows that he had not had success with the first two maneuvers and had had to progress to step three, the use of the Woods screw maneuver.

[282] On the basis of the evidence presented, the expert evidence that I have accepted, and the plain availability in the obstetrical literature of a reasonable alternative explanation for the partial but permanent brachial injury that Naleaha Jones-Carter sustained at birth, I am unable to draw an inference of prima facie negligence. As distressing and heartbreaking as the result may be, our law is clear that the presence of the result does not mean that the standard of care was breached. I cannot conclude from the evidence or infer from the injury itself that there was excessive traction applied by Dr. Warwaruk, as opposed to the “minimal” necessary traction to safely deliver this baby.

VI. Disposition

[283] In the result, the Plaintiffs’ action against Dr. Warwaruk is dismissed, with costs if demanded. If they are demanded, costs submissions shall be made to me briefly in writing within two weeks of the date of release of this decision.

Michael G. Quigley J.

Released: March 28, 2019

[^1]: I note that it is more likely that Ms. Jones learned of this from Mr. Carter, because she was actually passed out at and immediately after the delivery.

[^2]: It was actually the left eye according to the records.

[^3]: In September of 2009, Dr. Miller’s colleague, Dr. Ross, made a note on the occasion on one of Naleaha’s visits. It said in part as follows: “Although she seemed to be making improvements with her shoulder last time, she remains very tight in internal rotation. Certainly she will not require nerve grafting, but one wonders whether a shoulder release etc., might be helpful.”

[^4]: “Range of Motion.”

[^5]: Exhibit 7.

[^6]: Exhibit 7, at p. 4: 15th Edition of the ALARM Course Syllabus.

[^8]: The fundus in pregnancy is generally the “bump” portion of the pregnant mother’s abdomen, from just above the symphysis pubis, or pubic bone, to the top of the “bump” that contains the baby during gestation, at the top of the mother’s abdomen.

[^9]: Exhibit 8: Clark, Taylor and Prout, A Study on Brachial Birth Palsy, Update of a Report to the Neurological Society of New York, April, 1904, updated to January 1905.

[^10]: Ibid at p. 675. An “accoucheur” is a French term for a male midwife.

[^11]: Ibid at p. 677.

[^12]: See Nessler v. Colliton, 2008 ABQB 180, 439 A.R. 182, discussed below.

[^13]: I note that this is a contention that Dr. Barrett vigorously contested: see para. 142.

[^14]: Exhibit 9: R. Gherman, J. Ouzounian and T.M. Goodwin, “Brachial plexus palsy: An in utero injury?”, Am. J. Obstet Gynecol, May 1999; and Exhibit 12: R. Gherman, J. Ouzounian, D. Miller, L. Kwok and T.M. Goodwin, “Spontaneous vaginal delivery: A risk factor for Erb’s palsy?”, Am. J. Obstet Gynecol, March 1998.

[^15]: The article relates only to the United States.

[^16]: See also T.F. Baskett, and A.C. Allen, “Perinatal Implications of Shoulder Dystocia”, in Obstetrics and Gynecology, (July 1995; Vol. 86, No. 1, American College of Obstetricians and Gynecologists) at p. 14, a study published in the ACOG Journal but based on a 10 year (1980-1989) retrospective case record review in Canada of all instances of shoulder dystocia in the two University Teaching Hospitals associated with Dalhousie University in Halifax, Nova Scotia.

[^17]: Exhibit Number 11: S. Menticoglou, “Shoulder dystocia: incidents, mechanisms and management strategies”, International Journal of Women’s Health, 2018: Vol. 10 at pp. 723-732.

[^18]: The post-operative summary contains an additional two paragraphs, but they are not relevant to the issues here. I note that the post-operative note does not refer to the use of the Woods screw maneuver, by name. However, as clarified further in the evidence of Dr. Barrett, Dr. Warwaruk’s post-operative note that “the posterior shoulder was eventually rotated under the symphisis and the baby delivered without further difficulty,” makes plain that Dr. Warwaruk did use the Woods screw maneuver after the McRoberts and supra-pubic pressure maneuvers did not yield the desired results, and that it was that maneuver that facilitated the delivery.

[^19]: S. Mentacoglou, “Delivering Shoulders and Dealing With Shoulder Dystocia: Should the Standard Change?”, J. Obstet Gynecol Can 2016: 38(7): 655-658.

[^20]: Exhibit 12, supra note 14.

[^21]: See also Exhibit 9 at p. 1306, where the same authors state in their earlier study that: “The data presented in this article supports the concept that not all brachial plexus policies are traction mediated. Moreover, as many as 50% of all brachial plexus injuries may be attributable to unavoidable intrapartum or antepartum events and not to actual management of the shoulder dystocia. Even if it is present, shoulder dystocia should not be considered as causative for brachial plexus injury among those neonates with fetal macrosomia or prolonged second stage labour. Before actual recognition of the shoulder dystocia, a significant degree of stretch or pressure may have already been applied to the fetal brachial plexus. And in utero insult, perhaps combined with a fetal susceptibility to pressure or traction, may be at heel logic in the group of infants without any risk factors for injury. Because there is no currently accepted method to objectively quantify “excessive” lateral traction, the mere occurrence of brachial plexus injury should not therefore be taken as prima facie evidence of medical negligence.”

[^22]: See para. 96, above.

[^23]: Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1997] S.C.J. No. 100, [1998] 1 S.C.R. 424,

[^24]: Crits v.. Sylvester (1956) 1956 CanLII 34 (ON CA), O.R. 132 (C.A.).

[^25]: Ibid at page 143.

[^26]: Rex v. Bateman, (1925) 41 TLR 557 at p. 559.

[^27]: Kenyeres (Litigation Guardian of) v. Cullimore, [1992] O.J. No. 540, 32 A.C.W.S. (3d) 750, [NTD: MB, please find the citation] aff’d xxx.

[^28]: Wilson v. Swanson, (1956) 1956 CanLII 1 (SCC), S.C.R. 804, at para. 21.

[^29]: Ibid at p. 811. See also Kungl v. Fallis, (1989), O.J. No. 15 (O.S.C.) at para. 97.

[^30]: Lapointe v Hopital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at paras. 31-32.

[^31]: St. Jean v Mercier, 2002 SCC 15 at para. 53.

[^32]: Crits, supra note 24 at para. 15.

[^33]: Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424 at paras. 27-28.

[^34]: See for example, Lapointe, supra note 30 at para. 28; Ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 47.

[^35]: Bafaro v. Dowd, 2008 CanLII 45000 at para. 26 (Ont. SCJ.), aff’d 2010 ONCA 188.

[^36]: Lopez v. Silver, 2003 CanLII 2173 at para. 46 (Ont. SCJ.), Fashola v. Salvation Army Grace Hospital, [1992] O.J. No. 1107 at paras. 5 and 55 (Gen. Div.), Brown (Litigation Guardian of) v. Sarraf, [1998] O.J. No. 3746, at para. 76 (Gen. Div), Fleury (Next Friend of) v Woolgar, 1996 CanLII 10348 (AB KB), 37 Alta LR (3d) 346, at paras. 21-23 (ABQB), and Nessler v. Colliton, 2008 ABQB 180, at paras. 197-222.

[^37]: See further: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (2nd Ed.) (Butterworths: Toronto, 1999) at paras. 2.71-2.81; Watt’s Manual of Criminal Jury Instructions (2nd Ed.)(Carswell: Toronto, 2015), at pp. 276-280,

[^39]: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333.

[^40]: Supra note 36.

[^41]: Nessler, supra note 36 at para. 1.

[^42]: Notwithstanding that finding of a breach of the standard of care by Dr. Colliton in terms of her recording of the details of the delivery, there was no suggestion in Nessler that any breach in that regard could have been causative of the damages complained of by the Plaintiffs in that case.

[^43]: Trial Record, Plaintiffs’ Statement of Claim, at paras. 21 and 27(A)(16).

[^44]: See Dharsi Estate v. Manji, 2014 ONSC 3430 at paras. 23-26.

[^45]: Rule 26.01 directs the Court to grant leave to amend a pleading at any stage of an action on such terms as are just unless prejudice would result that could not be compensated for by costs or an adjournment. A withdrawal of an admission would have required leave of the Court: Rule 51.05.

[^46]: Exhibit 1: Joint Document Brief at pp. 30, 42, 47, and 155.

[^47]: The Plaintiffs’ action was initially brought against both Dr. Warwaruk and Windsor Regional Hospital. At para. 5 of their Statement of Claim, the Plaintiffs pled that the hospital was responsible for the acts and omissions of the attending nursing staff. However, the Plaintiffs consented to the dismissal of the action as against the Defendant hospital so plainly there is no imputation of fault remaining against the nursing staff.

[^48]: Fontaine, supra note 33 at para. 27.

[^49]: See paras. 212-216, above.

[^50]: Exhibit 9, supra note 14 at p. 426.

[^52]: Exhibit 12, supra note 14 at p. 426. “Etiologic”, in a medical context, refers to things that may cause or contribute to the development of a disease or condition.

[^53]: Supra note 50.

[^54]: Exhibit 11: 2018 Shoulder Dystocia Article by Dr. Menticoglou, p. 725.

[^55]: Exhibit 16: Baskett Article on Shoulder Dystocia.

[^56]: Ibid, Exhibit 16: at p. 14, Table 3: Method of Management of Shoulder Dystocia: Relationship to Perinatal Trauma.

[^57]: Exhibit 8, supra note 9.

[^58]: Ibid at p. 678.

[^59]: Dr. Miller’s ultimate diagnosis of Naleaha, contained in his expert report dated December 13, 2017, was “left perinatal obstetrical brachial plexus palsy, Erb’s type, with a permanent partial impairment and permanent weakness in the muscles innervated by the upper trunk and specifically the C5/6 myotomal territories.” See also Exhibit 1, Joint Document Brief, p. 182 “Lt Erb’s paralysis”, p. 183 “Lt Erb’s palsy”, p. 283 “Obstetrical brachial plexus palsy – Erb’s type”.

[^60]: Lopez, supra note 36.

[^61]: Bafaro v. Dowd, 2008 CanLII 45000 at para. 26 (Ont. S.C.J), aff’d 2010 ONCA 188

[^62]: Exhibit 11, supra note 54 at p. 725.

[^63]: Exhibit 10: S. Mentocoglou, “Two-Step Delivery May Avoid Shoulder Dystocia: Head-to-Body Delivery Interval Is Less Important Than We Think”, Letter to the Editor, J.O.C.G., dated December 2014, pg. 1053: “Exerting any traction at all on the head is unnecessary and potentially harmful.” … “Traction is harmful and can cause permanent brachial plexus injury”; Exhibit 11: supra note 54 at p. 731: “The admonition has been made “do not pull hard, do not pull quickly, and do not pull down. I believe that one should not pull AT ALL, neither to make the diagnosis of shoulder dystocia nor as part of the McRoberts’ maneuver or in conjecture with supra-pubic pressure”; Exhibit 13, Should the Standard of Care Change (Article).

[^64]: Exhibit 9, supra note 14 at p. 1306.

[^65]: Bafaro v. Dowd, supra note 61.

[^66]: Turkington v. Lai, 2007 CanLII 48993 (Ont. S.C.J) at para. 93.

[^67]: Fashola, supra note 36.

[^68]: Nessler, supra note 36.

[^69]: Hassen v. Anvari, [2001] O.J. No. 6085 (S.C.J.) aff’d 2003 CanLII 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), app’n for leave to appeal to S.C.C. dismissed (2004); [2003] S.C.C.A. No. 490 (S.C.C.).

[^70]: 2006 ABQB 342 (Alta. Q.B.).