COURT FILE NO.: 449-14
DATE: 2019/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maria Angelica E. Uribe, Ricardo Adolfo Uribe and Elijah Richardo Uribe, a minor, by his litigation guardian, Maria Angelica E. Uribe
Plaintiffs
– and –
Dr. Nickoli Tsandelis
Defendant
Graham Bennett and Greg A. Carr, for the Plaintiffs
Darryl Cruz and Christine Wadsworth, for the Defendant
HEARD: November 27, 2019
Turnbull J.
[1] This obstetrical malpractice jury trial was presided over by me between between October 15 and November 1, 2019. The plaintiffs proceeded in their action against the defendant obstetrician, Dr. Nickoli Tsandelis (the “Defendant”). Other claims against Grand River Hospital and the additional nursing defendants (the “Settling Defendants”, collectively) settled in advance of trial pursuant to a Pierringer Agreement. Counsel for the plaintiffs and the defendant Dr. Tsandelis agreed upon damages prior to trial, with the issues of standard of care, causation, and apportionment of damages left for the jury.
Overview of the Facts:
[2] For a medical malpractice case, the issues were not terribly complicated. The evidence showed that the plaintiff Maria Uribe had an uneventful pregnancy. Her obstetrician was the defendant Dr. Tsandelis. Her labour was induced with cervidil in the evening of April 28, 2010. She returned to the hospital early in the morning of April 29, 2010. She was examined and found to be in labour. She was admitted to the hospital and sent to a room on the labour and delivery floor. By 7:10am, her cervix was effaced to 9 cms. After examining her at about 9:00am, Dr. Tsandelis returned to his office, having advised the plaintiff that she probably would have to have a c-section. By 9:30am, despite being administered oxytocin (a drug used to assist in effecting full dilatation of the cervix to permit delivery of the baby), she had not progressed.
[3] At about 9:57am, there was a marked, prolonged deceleration of the baby’s fetal heart rate for approximately 5 minutes. Appropriate resuscitation efforts were undertaken by the attending nurse and the baby appeared once again to be stable. She then contacted Dr. Tsandelis by telephone around 10:02am or 10:03am and he was notified of this occurrence. Having been assured that the baby was again stable, he left it to the nurse to restart the oxytocin when she deemed it appropriate. He remained in his office to see a couple of patients and cancelled his other appointments so that he could return to the hospital.
[4] At approximately 10:10, the nurse recommenced the administration of oxytocin. At 10:17, the baseline heart rate of the baby had decelerated to about 110 beats before continuing its deceleration over the next minute or two. She described it as being “really bad” and charted that the heart rate fell as low as 60. At 10:20am, when the baby appeared to be relatively restabilized, she conducted a vaginal examination of the plaintiff and found no evidence of meconium (which might indicate the baby was in some distress).
[5] At 10:25am, a total occlusion of the umbilical cord occurred cutting off blood and oxygen supply to the baby. The nurse testified that about 10:25am, she called Dr. Tsandelis as she knew a crash C-section needed to be performed and that “time was everything.”.
[6] Dr. Tsandelis testified that he arrived, gowned for surgery, in the hospital operating room at 10:40am but he was not able to immediately perform the c-section as the patient was not yet properly anaethesized or draped. When all was ready, Dr. Tsandelis began the surgical procedure at 10:48am and the baby Elijah was delivered one minute later at 10:49am. Unfortunately, he had been deprived of oxygen for too long a period of time and he suffers from severe cerebral palsy.
[7] Dr. Tsandelis testified that elective c-sections were scheduled on Thursdays at 9:00am, 10:30am, 12:00 noon and 1:30pm. He stated that generally the patient for the 10:30 elective procedure would be rolled into one of the two operating rooms at about 10:20am to prepare the patient for surgery. Because the one available operating room had already been occupied by the patient and surgical team preparing for the scheduled elective c-section at 10:30am, it took time to get that patient out of the room, get the plaintiff wheeled into that room and to appropriately prepare for the plaintiff’s emergency c-section.
[8] The plaintiffs led expert evidence from two obstetricians that:
a. The guidelines of the Society of Obstetricians and Gynecologists of Canada (SOGC) required the defendant to promptly prepare for delivery of the baby in the face of a deceleration exceeding 3 minutes and not exceeding 10 minutes;
b. That Dr. Tsandelis should immediately have returned to the hospital upon receiving word of the prolonged deceleration between 9:57am and 10:02am in order to personally assess his patient and to be present to conduct a c-section.
c. That if he had been at the hospital, this emergency c-section could have been performed much more quickly and that probably Elijah would not have suffered his brain damage.
[9] The Defendant also led expert evidence from two obstetricians who testified that Dr. Tsandelis had not breached the standard of care, including that recommended in the SOCG guidelines, by not returning to the hospital immediately after the first prolonged deceleration and/or giving instructions to begin preparations for prompt delivery.
[10] Dr. Derek Armstrong, a pediatric neuroradiologist, gave expert evidence on the issue of causation. His testimony was not seriously challenged by counsel or any of the expert witnesses. In his view, brain injury occurs within 10-15 minutes of the onset of sever hypotension which in this case occurred at 10:25am. He stated that if Elijah had been born somewhere between 10-15 minutes earlier, the severe damage suffered by him would not have occurred.
[11] On November 1, 2019, the jury returned a verdict finding that Dr. Tsandelis had breached the standard of care and that this breach caused the brain damage sustained by the infant Plaintiff, Elijah Uribe. The jury likewise found that the Settling Defendants had breached the standard of care and that this breach caused the Plaintiff’s injuries. The jury apportioned liability as 32% against Dr. Tsandelis, and 68% against the Settling Defendants.
[12] After the jury was discharged, the Defendant brought this motion under Rule 52.08 to dismiss the Plaintiffs’ claim on the basis that the jury applied an incorrect legal standard and/or that there was no evidence on which a judgment for the plaintiffs can be based relative to a breach of the standard of care. The defendant also has moved for an order pursuant to Rule 52.08(1) of the Rules of Civil Procedure dismissing the action or, in the alternative, directing that the action be retried with another jury.
Applicable Legislation:
[13] The applicable legislation in this matter is as follows:
Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 108(5)(b).
108 (5) Where a proceeding is tried with a jury,
(b) judgment may be entered in accordance with the verdict or the answers to the questions. R.S.O. 1990, c. C.43, s. 108 (5).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 52.08(1).
52.08 (1) Where the jury,
(a) disagrees;
(b) makes no finding on which judgment can be granted; or
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. R.R.O. 1990, Reg. 194, r. 52.08 (1).
[14] For ease of reference, I have attached as Schedule A to this ruling the Verdict sheet which contains the jury questions and the answers provided by the jury. I have deleted the name of the jury foreman who signed the verdict sheet to protect his privacy.
The Applicable Law:
[15] The issue on this motion is whether there was evidence to support the verdict rendered and if the jury used the proper legal foundation for reaching its verdict.
[16] Our courts have held that for this court not to enter judgment on the verdict based on a lack of evidence, the circumstances are very narrow. There must be “no evidence” to support the verdict if the motion is to succeed. [^1] In Hill v. Church of Scientology of Toronto[^2] the court determined at paragraph 26 that it has a limited authority to reject a jury’s verdict and those parameters are strictly defined by Rule 52.08. While no authorities were provided to me on the issue of “conflicting answers”, the same detailed analysis of the jury’s answers must be undertaken by the trial judge.
[17] It is not the duty of the trial judge to determine if the verdict is perverse. It is my duty as the trial judge to determine if one or more of the factors listed in Rule 52.08 justify not entering judgment in accordance with the verdict.
Position of the Defendant
[18] Mr. Cruz framed his two principle submissions within the framework of the wording of paragraphs (b) (lack of evidence to support the finding on the breach of standard of care and causation (delay in operating) and (c) (conflicting answers) of Rule 52.08. I will deal with these submissions in the same order as Mr. Cruz made his submissions.
Position of the Plaintiffs
[19] The Plaintiffs’ position in response to the Defendant’s motion is that the jury:
a. was unanimous; (the jury was polled and unanimously indicated that they agreed with the answers to each question and the reasons given for reaching those decisions)
b. made findings on both standard of care and causation on which judgment in negligence could be granted;
c. answered all the questions directed to it without giving conflicting answers; and
d. received ample evidence upon which to base their verdict;
[20] Mr. Bennett urged the court recognize that jurors are lay people and their language should not be considered with the same specificity as applied to a judge or a lawyer. The Plaintiffs submit that they are entitled to judgment in accordance with the verdict reached by the jury following the trial of this action.
Issue #1: Conflicting Answers:
[21] Mr. Cruz submits that the answer given by the jury to question 2(b) conflicts with the answer to question 2(a) in that the jury said that Dr. Tsandelis’ failure to follow the SOCG Guideline[^3] “Prepare for Delivery” “contributed to (emphasis added) Eligah’s eventual brain damage.”
[22] He submits that the jury was clearly and correctly directed to consider the issue of causation on the “but for” standard articulated in question 2(a). In doing so, the court specifically rejected the wording for that question which plaintiffs’ counsel urged be used. In particular, they submitted that the question should have used the words “caused or contributed”. They wanted the question to read:
“Have the plaintiffs proven on the balance of probabilities that the breach(es) of the standard of care by Dr. Tsandelis caused or contributed to Elijah’s brain damage?
[23] The defendant argues that by using the word “contributed” in the answer to question 2(b), the jury members used the wrong test. Mr. Cruz suggested that when they did make a finding that the breach of the standard of care contributed to Elijah’s brain damage, they determined that the doctor’s actions did not meet the higher standard required to meet the “but for” test. Hence, on that reasoning, Mr. Cruz argued that the court is left with a finding of fact which should result in a dismissal of the plaintiffs’ case on the “but for” standard because I can not make a causal link against the doctor. In other words, there is on that interpretation, a conflict between the standard used in question 2(a) and 2(b).
[24] Mr. Cruz further compared the answer given on causation in Question 4(b) which was the causation question relative to the breach of standard of care of the nurses/hospital (the Settled Defendants). In that answer, he noted that the jury wrote that “Nurse Nyyssonen didn’t follow the SOGC guideline “prepare for delivery” at the time of the 1st deceleration at 10:02 and this caused a domino effect.” (emphasis added). He asks the court to conclude that the use of the word “caused” confirms that the jury used the correct test in answering that question but erred in applying the incorrect test when answering question 2(b).
[25] I disagree. Their answers must be read in the context of the case and the task they were undertaking. They were fully aware that depending on their answers, they would have to apportion liability between Dr. Tsandelis and the hospital/nurses. They did that when they apportioned 32% liability to Dr. Tsandelis and 68% liability to the hospital/nurses. The fact that they used the word “contributed” in explaining their answer to the causation question is not indicative of their failure to apply the appropriate test in answering the causation question. The jury found that both the defendant and the Settled Defendants caused the damage.
[26] If the courts hold the members of a jury to the same standard of perceived legal perfection in terminology as a judge, it is questionable if the explanation for an answer given by a civil jury would ever meet the standard sought by the defendant. The specific “but for” question was clear, worded in accordance with the wishes of the defendant (and not the plaintiff) and was clearly and specifically answered by the jury.
[27] Reviewing the answers given to each question by the jury shows that they had clear understanding of the issues and the facts. The answers they provided are specific and responsive to the questions. I dismiss this ground of argument advanced by the defendant.
Issue #2: Lack of Evidence to Support the findings of:
a. Breach of Standard of Care,
b. the Delay in Delivery was causative of Elijah’s brain damage.
c. That any act or omission of Dr. Tsandelis caused a total cord occlusion or that, when the total cord occlusion was encountered, that it could have been relieved during the short window, given the circumstances in the hospital at that time.
[28] Counsel for the defendant submitted that there was nothing in the evidence at trial which described what the standard of care was or what the content of the duty was for the defendant “to prepare for delivery”.
[29] Secondly, he argued that the plaintiffs failed to ask their experts what time Elijah would have been delivered if Dr. Tsandelis had met the standard of care. He submitted that conclusory statements from the plaintiffs’ experts that Elijah could have been delivered “earlier” are insufficient to provide a foundation for the judgment. He submits that the court needs to know exactly “how” things would have been different. In that respect, he relies heavily on the case of Salter v Hirst [2010] ONSC 3440 affirmed at 2011 ONCA 609.
[30] In the Salter case, supra, at para. 47, the Court of Appeal found that while the defendant doctor was negligent in not transferring the plaintiff earlier to another hospital for better diagnostic testing, there was no expert evidence led whether that delay caused or contributed to the plaintiff’s bad outcome. I find on the facts of this case, the Salter decision is distinguishable as there was evidence led through the experts for the plaintiffs that Elijah would not have suffered brain damage but for the breach of the standard of care of the defendant.
[31] It is clear from the answers of the jury, based on evidence they heard from some of the experts, that Maria Uribe became a high risk patient at 10:02 (after the first prolonged deceleration). The jury accepted the standards endorsed by the SOCG that in such circumstances the responsible physician should prepare for delivery. The plaintiffs’ experts both stated that he should have immediately gone to the hospital to assess his patient. On the evidence Dr. Tsandelis gave about the short distance his office was from the hospital (5 minutes according to his evidence in examination in chief), he would have been at her bedside at or about the time the second deceleration commenced (from 10:16:30 to 10:18. Obviously, he had to be at the hospital as one of the steps to prepare for delivery. In answering question 2(b), the jury wrote:
If Dr. Tsandelis would have secured the O.R. prior to the elective C-section patient being moved in at 10:20, the O.R. would have been ready for Maria. Elijah would have been delivered sooner avoiding the asphyxia altogether.
[32] The Society of Gynecologists of Canada (“SOGC”) 2007 Clinical Practice Guideline for Fetal Health Surveillance: Antepartum and Intrapartum Consensus Guideline (Trial Exhibit 4) was front and center throughout the trial. The chart and paragraphs contained at pages S37 and S38, specifically referenced in the jury’s reasons, were referred to extensively by every expert witness in examination-in-chief, cross-examination, or both, when discussing the standard of care required of Dr. Tsandelis, and in particular detail by Dr. Barrett and Dr. Bernstein, obstetrical experts called by the Plaintiffs and the Defendant, respectively. Dr. Berstein agreed in his cross examination that the whole purpose of the 2007 SOGC Guideline was to prevent fetal sphyxia and that the guideline would inform his opinion with respect to standard of care issues.
[33] I find that there was expert evidence adduced at trial which supports the particulars of Dr. Tsandelis’ negligence found by the jury in this matter, which included their finding that “At the time of the first phone call from Nurse Nyyssonen the Guidelines of SOGC were not followed by Dr. Tsandelis to prepare for delivery.”
[34] In his able cross examination of Dr. Barrett, Mr. Cruz challenged the plaintiff’s expert with respect to his contention that a c-section was indicated immediately after the first deceleration which ended at about 10:02am. Dr. Barrett replied and said “in this patient, I believe it absolutely yes”. And further in the same exchange, he added:
So this is the time to do the caesarian section and get a good outcome. It absolutely is indicated here. Again, my point is, even if you don’t do it there, you come to the hospital. You be there if you start the oxytocin. You are not at your office waiting for the disaster to happen.
[35] In response to Mr. Cruz’ next question he added:
I think they should have proceeded with a caesarian section as soon as they possibly could have in this situation. …….It’s as soon as you can possibly mount a caesarian section in the situation you are in, and at this time, I believe there was an anesthesist (which the evidence did confirm), I believe there was an operating room. The patient they could have easily just moved her and done a caesarian section.
[36] It was also open to the jury to conclude that had Dr. Tsandelis been present, he would have immediately known of the second deceleration at 10:17am and could promptly have arranged for an emergency C-section before the one available operating room was occupied by the patient and surgical team involved in the 10:30am elective C-section. Mr. Cruz argued that there was no evidence led of when the crash C-section could have been performed and there was no evidence that Dr. Tsandelis would be able to “bump the elective C-section patient.” However, the evidence is clear that the C-section patient was “bumped” because Elijah’s situation was grave and it was open to the jury to find that the same thing could have occurred if requested earlier.
[37] On the evidence, Dr. Tsandelis did not learn of the second deceleration until approximately 10:27am while he was en route to the hospital. Based on Dr. Tsandelis’ own evidence that the patient involved in the elective C-section procedure scheduled for 10:30am would not be taken to the operating room until 10:20am, the jury did have evidence upon which to infer the delay caused by having to re-prepare the operating room was avoidable and causative of the brain damage suffered by Elijah. The jury accepted that the cause of the brain damage was the unforeseeable total cord occlusion which occurred at 10:25am but they accepted the plaintiff’s evidence that this tragic outcome could have been prevented by earlier action on the part of Dr. Tsandelis as mandated by the guidelines of the SOGC.
[38] It was open to the jury to find that had Dr. Tsandelis been at the hospital earlier with his patient, he would have immediately directed Ms. Uribe to be prepared for an urgent c-section at the time of the second significant deceleration at or about 10:17 to 10:18am, well before the total cord occlusion became a critical situation at 10:25am. Their findings are in my view a clear rejection of the position of the defendant that a c-section was only finally required at 10:25am when the total occlusion of the cord was identified and there was evidence upon which they could found that decision.
[39] The jury also had the uncontradicted evidence of Dr. Farine that in an urgent situation, he (and inferentially other obstetricians) can make things happen much more quickly than usual in the operating room if time is of the essence in the delivery.
[40] Mr. Cruz argued that this theory of the plaintiff just evolved during the trial. He noted that initially neither of the plaintiff’s experts referred to the SOCG guideline (Ex. 4, page S37 and S38). However, Dr. Barrett did testify that he did reference the SOCG guideline in his second report prepared for trial. Mr. Cruz emphasized that there was no expert evidence stating that in the unique circumstances of this case that the delivery could have been performed earlier and with different results. He said that there is no evidence that the operating room would have been available.
[41] While the ultimate burden of proving negligence lies with the plaintiff, I find that there was sufficient expert evidence for the jury to reach its decisions both on the breach of the standard of care and on the issue of delay. Furthermore, it was open to the jury to apply their own common sense based on all the evidence and draw an inference that the defendant’s delay in promptly preparing for delivery fell below the standard of care and that an operating room was available at the very least up to 10:20am. In that respect, it is helpful to further review some of that evidence.
Analysis of the Submission about Lack of Evidence:
[42] There is evidence from both Dr. Bernstein and Dr. Barrett that the second deceleration occurred at about 10:16:30am to 10:18am. The jury had evidence of Dr. Barrett and Dr. Farine that Dr. Tsandelis should have been at the hospital with his patient at that time.
[43] In my view, it was open for the jury to find that Dr. Tsandelis’ failure to attend promptly at the hospital after the 10:02am phone call to at least assess his patient and/or direct preparations to commence for an immediate c-section fell below the standard of care. It was also open for them to conclude on the evidence, that at the start of the second deceleration a decision for an immediate c-section would have been taken resulting in a timely delivery of Elijah. I will review just a portion of the evidence which would have allowed them to reach such conclusions.
[44] In my charge to the jury, the evidence of Dr. Barrett was summarized as follows.[^4]
Dr. Barrett felt that Dr. Tsandelis did not meet the standard of care of an obstetrician in several respects:
At 8:30am, the process of contraction augmentation with the use of Oxcotin was not appropriate.
Immediately after receiving word of the five minute deceleration between 957am and 10:02 am, Dr. Tsandelis should immediately have returned to the hospital in anticipation that a C section would have to be performed.
The standard of care required Dr. Tsandelis to review the fetal heart tracings which existed before the incident at 9:57am if he had returned to the hospital. He would have seen the previous variable decelerations, the prolonged 5 minute deceleration and in the face of over three hours of no progress in labour, he then would have done a C section right away. He should have performed the C-section at that time.
If he had returned to the hospital, he would have been there after the second deceleration. He said that in the end, minutes really matter because no blood and O2 is getting to the baby. In his view, Dr. Tsandelis could have gotten the baby delivered before there was any damage done.[^5](underlining added)
178: During his examination in chief, Dr. Barrett was presented with Exhibit 4: the SOGC Antepartum and Intrapartum consensus guideline. He stated that it is a guideline recognizing that individual circumstances may require the physician to use his/her judgment accordingly. He testified that during the prolonged deceleration, the fetal heart rate pattern was abnormal and is defined as such in the guidelines of the SOGC. He was of the opinion that it was inappropriate to restart the oxytocin after the prolonged deceleration and not being in the hospital.
179: He noted that at page S. 38 of the SOGC guideline, the doctor has to deliver the baby right away and to do that, he had to be there to attend to the patient. He said that when there were decelerations of the heart rate before 9:57am, they were yellow flags. The 5 minute deceleration at 9:57 to 10:02am was a red flag in his opinion.
180: He did testify that the first step was for the defendant to immediately get back to the hospital and personally assess his patient and the situation would have dictated to perform the c-section immediately at that time.
[45] At paragraph 203 and 204 of the charge, his evidence was summarized :
….as of 10:00am, Ms. Uribe became a high- risk patient and had to be treated as such. He agreed that while it was not an emergency or stat C section which was required at 10:02, the standard of care required Dr. Tsandelis to go to the hospital before beginning the oxytocin and to proceed to do a C-section as soon as reasonably possible. In Dr. Barrett’s opinion, if Dr. Tsandelis had promptly moved at 10:07am, they would have been half way through organizing it.
[46] In his cross examination, Dr. Barrett answered as summarized in paragraph 197 of the charge:
He testified that the monitor tracings make it clear that a C-section was required at 10:16 a.m. He stated that if Dr. Tsandelis was present, the movement to the O.R. and the C-section would have all occurred much more quickly.
[47] Dr. Dan Farine was an expert witness called to give evidence for the plaintiffs on the issues of standard of care and causation. His evidence was summarized in the jury charge at paragraphs 227. He testified that after receipt of the phone call at about 10:02am, Dr. Tsandelis’ failure to attend and assess the patient and to look at the fetal heart tracing fell below the standard of care. He stated that the problem in this case was that no-one called for a C-section because no-one had examined Maria Uribe in a timely way. In cross-examination,[^6] Dr. Farine stated that if Dr. Tsandelis had been present, the delivery would have occurred much faster. He testified that he can get it done in one tenth of the time in such situations provided the patient is ready. He re-iterated that Dr. Tsandelis should have been there shortly after the phone call after the first prolonged deceleration.
Conclusion:
[48] The defendant’s motion is dismissed. Judgment shall be entered in accordance with the jury’s verdict. If counsel need to speak to the court with respect to any issue relating to the entry of the judgment, they can make the appropriate arrangements through the Trial Co-ordinator at Kitchener.
[49] On the issue of costs of this motion and the trial, if counsel are unable to settle those issues, counsel can make arrangements through the Trial Co-ordinator at Kitchener to speak to me by telephone conference call so that an order can issue with respect to a schedule for me to receive the submissions of counsel.
Turnbull, J.
Released: December 6, 2019
COURT FILE NO.: 449-14
DATE: 2019/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maria Angelica E. Uribe, Ricardo Adolfo Uribe and Elijah Richardo Uribe, a minor, by his litigation guardian, Maria Angelica E. Uribe
- and –
Dr. Nickoli Tsandelis
REASONS FOR JUDGMENT
Turnbull J.
Released: December 6, 2019
[^1]: Sandhu (Litigation Guardian of) v. Wellington Place Apartments, [2006] O. J. No. 2344 (S.C.J.) at paras 11,12. [^2]: 1992 CanLII 7516 (ON SC), [1992] O. J. No. 451 (Ont. Gen. Div.) aff’d (1994), 1994 CanLII 10572 (ON CA), 18 OR (3d)385 (C.A.), aff’d 1995 CanLII 59 (SCC), [1995]2 SCR 1130 [^3]: The relevant extract of the SOGC guideline provided that in the event of a prolonged deceleration of more than three minutes and less than ten minutes, the physician should take immediate steps to prepare for delivery. [^4]: See paragraphs 176-180 of Jury Charge. [^5]: This opinion was not challenged in cross examination nor was it contradicted by any of the defendant’s experts. [^6]: Para. 239 of Jury Charge.