COURT FILE NO.: CV-14-515860

DATE: 20220829

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NORMAN PENATE, a person under disability by his Litigation Guardian,

LUZ PENATE, WILLIAM A. PENATE, JESIEL PENATE, WILLIAM S. PENATE, and the said LUZ PENATE personally

Plaintiff

– and –

A. MARTOGLIO, G. LUI, M. DANELICE, J. WASSERMAN, J. CHONG, S. SHINOFF, MARY BEVERIDGE and DAVID BEVERIDGE as Executors of the Estate of DONALD MARTYN, ST. MICHAEL’S HOSPITAL, S. KING‑FORBES, S. SLOAN, R. STEWART, C. STARK, M. LAU, M. GEORGE, M. TITCHNER

Defendants

Hilik Elmaliah and Jeremy Syrtash,

for the Plaintiffs

Anne Spafford, Adam Patenaude and

Carly Moore, for the Defendant Physicians

Katharine Byrick, Logan Crowell and Neda Foroughian

for the Defendant St. Michael’s Hospital

HEARD: September 21-24; 27-29, 2021; October 4-8; 12-15; 18-22 and 25-28, 2021

REASONS FOR DECISION

J.E. Ferguson j.

[1] This was a medical negligence trial. Following the trial, all of the transcripts were obtained. Written submissions of the plaintiffs were received on December 14, 2021; the defendant physicians’ submissions on January 17, 2022; and the defendant hospital and nurses’ submissions on January 18, 2022. I have checked transcript references and find them to be correct. As a result, I am not including transcript references in these reasons. I greatly appreciate that counsel have provided transcript and evidence references in their written submissions.

[2] Liability and causation are in issue. Damages have been settled.

THE DECISION

[3] There is no dispute that Norman has been left with a devastating brain injury and that his life has been significantly affected. It is fortunate that Norman has such a loving and supportive family. Mr. and Mrs. Penate were present throughout the trial and their love for, and support of Norman were clear. I did not meet Norman’s brothers, but from the evidence I heard, it is clear that they as well are loving and supportive of their brother.

[4] Physicians and other health care professionals (nurses) should not be judged by the outcome and it is inappropriate to assume that a bad outcome was caused by negligence. The assessment of a health practitioner’s care as against the standard cannot be retrospective and courts should be careful not to rely on the perfect vision afforded by hindsight. I find that the defendant physicians and nurses met the standard of care (other than Dr. Liu’s lack of note taking). If I am wrong on any of my standard of care findings, causation prevents the plaintiffs from succeeding in their action.

[5] The action is dismissed and these are the reasons.

THE PARTIES

[6] Norman Penate (“ Norman”) was born on July 15, 1996. He has two brothers, William born on October 9, 1993, by caesarean section (“CS”) following a 24 hour long labour. His other brother, Jesiel, was born on March 3, 1995, by a vaginal delivery following a 12 hour long labour. This was a vaginal birth after a prior CS (“VBAC”).

[7] Norman’s parents are Luz Penate (“Mrs. Penate”), and William Penate (“Mr. Penate”). Mrs. Penate does not speak English (or very limited only). Mr. Penate speaks English and Spanish.

[8] Dr. Adelmo Martoglio (“Dr. Martoglio”), is an obstetrician/gynaecologist who oversaw the delivery and birth of Jesiel and who was involved in Norman’s prenatal care. He has practiced at St. Michael’s Hospital (“SMH”) since 1973 and has recently retired. He was not on call at the hospital on the night of Norman’s birth. Mrs. Penate chose Dr. Martoglio because he speaks both Spanish and English and she trusted him.

[9] Dr. Grace Liu (“Dr. Liu”) was involved as a resident with the delivery and birth of Norman. I am going to expand on Dr Liu’s background at this point because of the allegation that she was not sufficiently trained to perform an artificial rupture of the membrane (“ARM”).

[10] Dr. Liu graduated from the University of Toronto (“U of T”) medical school in 1995. On graduation, she was awarded a prize for proficiency in obstetrics. Dr. Liu successfully completed her residency in obstetrics and gynaecology and went on to obtain a master’s degree from Harvard. She has been practising as an obstetrician and gynaecologist at Sunnybrook Hospital (“SH”) since completing her training.

[11] Dr. Liu had the benefit of practical training during medical school and during her first year of residency. In the summer of her second year of medical school, she shadowed Dr. Matthew Sermer (“Dr. Sermer”), at the Toronto General Hospital (“TGH”). Dr. Sermer ran a clinic at the hospital and also worked on the labour and delivery unit. During that summer, Dr. Liu was trained to perform vaginal examinations.

[12] In her third year of medical school, Dr. Liu did a rotation at Women’s College Hospital (“WCH”) that lasted six weeks.

[13] In her fourth year of medical school, Dr. Liu spent three months with Dr. Douglas Gare (“Dr. Gare”) at the TGH. He was the chief of obstetrics. She worked in the outpatient clinic and in the labour and delivery unit. During her time with Dr. Gare, she performed vaginal examinations, ARMs and deliveries.

[14] In her first year of residency (also called “PGY-1” yea r), Dr. Liu undertook a 3-month rotation at Mount Sinai Hospital (“MSH”) and at the Toronto East General Hospital (“TEGH”). She split her time between the two hospitals. At MSH, she was on call every fourth day and at the TEGH, she was on call every third day. During these rotations, she worked independently, including performing vaginal examinations and ARMs.

[15] Dr. Liu estimated that by the time she met Mrs. Penate, she would have delivered many babies and performed 50 to 60 ARMs independently.

[16] Dr. Liu’s lack of note‑taking is an issue and is dealt with elsewhere in these reasons.

[17] Dr. Donald Martyn (“Dr. Martyn”), now deceased, was the on-call staff obstetrician on the night of Norman’s birth.

[18] SMH is a teaching hospital that is affiliated with U of T. Medical students in their residency receive training and mentorship under the supervision of experienced practitioners in a clinical setting. Within teaching hospitals, residents are at the forefront providing care. They document patient history, relevant findings, and communicate with the supervising staff physician regarding the course of action. They perform medical procedures, including vaginal examinations and ARMs.

[19] Nurse Sandra King (“Nurse King”) was employed by SMH and was working as an ultrasound sonographer in the outpatient fetal assessment unit (“FAU”). She performed a biophysical profile (“BPP”) (ultrasound) and interpreted a non-stress test (“NST”) which were done on Mrs. Penate.

[20] Nurse Moly George (“Nurse George”) was also employed by SMH and was in charge of Norman as a direct admit, referred by Dr. Martoglio. She took Mrs. Penate to a labour and delivery room to start the admission assessment and contacted Dr. Liu.

[21] All other defendants were released from the action.

[22] A major issue to be resolved is that because this matter dates back approximately 26 years, some records are missing, and some were never made (by Dr. Liu in particular). Dr. Martyn died before the action was started in 2014 and we do not have his evidence. Some witnesses have no memory of the events, and others have a partial memory only. The physicians and nurses often had to rely on their general standard practice in providing their evidence.

THE ISSUES

[23] The issues to be determined are as follows:

(a) Standard of Care

(i) Did Dr. Martoglio meet the standard of care?

(ii) Did Dr. Liu meet the standard of care?

(iii) Did Dr. Martyn meet the standard of care?

(iv) Did the defendant nurses meet the standard of care?

(v) Did Mrs. Penate provide informed consent?

(b) Causation

(i) Did Norman suffer a brain injury due to an interruption in blood flow for 18 minutes, following the cord prolapse (factual causation)?

(ii) If there were any breaches of the standard of care, were they causative of the outcome, meaning that but for those breaches, Norman would not have sustained a brain injury (legal causation)?

MRS. PENATE’S OBSTETRICAL HISTORY

[24] Mrs. Penate delivered her first child at St. Joseph’s Hospital (“SJH”) in 1993. The records of the delivery were not available but records generated in subsequent deliveries indicate that Mrs. Penate was in labour for approximately 24 hours and eventually required a CS for failure to progress.

[25] Mrs. Penate delivered her second baby at SMH on March 3, 1995. Dr. Martoglio provided prenatal care to Mrs. Penate.

[26] Mrs. Penate had a vaginal birth for her second baby. She and Dr. Martoglio had discussed the possibility of having a VBAC and she had agreed to that plan. Mrs. Penate confirmed at trial her strong wish to have a natural birth with her third pregnancy, without medication, and that she wanted to avoid a CS if possible. (She is a Jehovah’s Witness and will not accept blood products.)

[27] During Mrs. Penate’s labour with her second baby, she had an ARM performed by a resident which she remembers and further remembers that the process had been clearly explained to her by Dr. Martoglio. She delivered less than three hours after the ARM.

[28] Mrs. Penate came back to see Dr. Martoglio when she was pregnant with her third baby. She trusted him and they had a good relationship. Her due date was established as July 7, 1996.

[29] Mrs. Penate had an ultrasound on June 20, 1996, which was normal. The estimated fetal weight was 3,100 grams, plus or minus 10%, which was in the 50^th percentile.

[30] Mrs. Penate’s pregnancy with Norman was normal. No criticism has been made of the prenatal care provided by Dr. Martoglio.

July 15, 1996 – Women’s Health Care Clinic (the FAU)

[31] The FAU was located across the street from SMH. BPPs and NSTs were conducted in the FAU. Nurse King worked at the FAU, as did Dr. Mocarski. Dr. Mocarski is an obstetrician/gynaecologist. Dr. Mocarski’s role in the FAU was to interpret studies and recommend management.

[32] On July 15, 1996, Mrs. Penate was at 41 weeks gestation, one week past her due date. She had rapid contractions that morning. Her husband accompanied her to the appointment with Dr. Martoglio because she thought she would deliver that day.

[33] Dr. Martoglio referred Mrs. Penate to the FAU where she underwent a BPP and NST.

[34] The BPP was done by Nurse King and lasted for approximately 30 minutes. The BPP was not entirely normal because of the absence of fetal breathing movements. A NST was therefore performed by an unidentified nurse and a paper strip was generated.

[35] Nurse King interpreted both the BPP and the NST. She scored the BPP as 6/8 (with the missing parameter being fetal breathing) and the NST as 0/2 (non‑reassuring) for a total of 6/10 for both tests. In accordance with normal practice, Nurse King brought the BPP and the NST to Dr. Mocarski for review because the results were abnormal. Dr. Mocarski wrote on the NST test strip the words “not reactive”. On the NST form, Dr. Mocarski checked the box for “reactive”, which she testified at trial was an error as it was not reactive.

[36] Nurse King spoke with Dr. Martoglio and documented the following on the FAU ultrasound report: nonreactive NST spoke with Dr. Martoglio for induction. Nurse King believes that she made this note to connect the two tests together, to help show a full picture of what was going on and to document her communication with Dr. Martoglio.

[37] Dr. Mocarski testified that as the test scores were equivocal, two management options were available: either induce or repeat the BPP. Her recommendation was induction which is why she underlined the word “induce” on the NST form. Dr. Mocarski also made a note on the BPP form indicating the BPP score of 6/10 and the options of repeating the test or inducing labour.

[38] In accordance with Dr. Mocarski’s normal practice, she believes that she contacted Dr. Martoglio to advise him of the test results. She would have told him that the BPP results were equivocal and that she recommended induction. Dr. Martoglio also testified that, routinely, the person interpreting abnormal test results would contact him to explain and discuss the results.

[39] In the meantime, Mrs. Penate was escorted back to the clinic to see Dr. Martoglio, who testified that he would have had access to the test results, which he would have reviewed prior to seeing Mrs. Penate. The yellow “ref physician” copy of the NST was provided to Dr. Martoglio who reviewed the interpretations by Nurse King and Dr. Mocarski. Dr. Martoglio added his notes and interpretation to the document. This yellow copy is in the hospital chart.

[40] When Dr. Martoglio saw Mrs. Penate, he conducted a vaginal examination because he wanted to know where Mrs. Penate was in her labour and whether she might need an induction. He also wanted to determine whether her cervix was favourable for induction. A vaginal examination is the best way to determine the degree of the descent of the presenting part, the station. A vaginal examination is the most accurate way to assess the pelvic architecture and to determine whether the membranes are intact.

[41] Dr. Martoglio examined Mrs. Penate and found her to be 2 centimetres dilated, 50% effaced with a soft cervix. Dr. Martoglio testified that he determined the station of the presenting part but unfortunately did not document it. However, he testified that the head must have been inside the pelvis because otherwise, he would not have been able to assess the cervix and dilatation. Dr. Martoglio stated:

Then we do vaginal examination to see where we are, because maybe she needs an induction. I did a vaginal examination and they said this neck of the womb was 50 percent effaced, meaning two centimetres dilated and very soft. How do I check that? I have to have my finger inside the vagina against something solid. If there's nothing solid, it's impossible for me to say how many centimetres, how thin the cervix is if it is dilated at all. So has to have something solid against my fingers. The solid is the head of the baby. So it means the head of the baby was inside the pelvis but not low enough or high. I said two centimetres, very soft cervix, because effaced means thin. How do you compare something thin, you had to compare in something solid, otherwise you cannot say thin quick.

[42] Dr. Martoglio wrote the results of his examination on the yellow portion of the NST form. He circled “Equivocal” and wrote:

“Vag Cx 50% effaced 2 cm dilated soft Cx”

[43] Dr. Martoglio sent Mrs. Penate to the hospital to be assessed and although he thought the initial plan of VBAC was appropriate, it was not his decision to determine the plan of management. He gave Mrs. Penate the yellow copy of the results in an envelope. He testified that, based on his standard practice, he would have told Mrs. Penate the following:

I would tell Mrs. Penate, look, Mrs. Penate the baby is 41 weeks, the baby’s okay, but we are not hundred percent sure. I think you should be admitted in hospital and have the test done again or the doctor on call agrees, maybe they can rupture the membranes. This is the standard of practice.

[44] Mrs. Penate and her husband left the clinic and went across the street to the labour and delivery unit.

[45] In the meantime, Dr. Martoglio would have called the labour and delivery unit to alert them to the fact that he was sending over Mrs. Penate for assessment. Dr. Martoglio would have conveyed Mrs. Penate’s history including the fact that the plan of management was VBAC, that she was 41 weeks and had a slight abnormality in the BPP.

[46] When Mrs. Penate arrived at the labour and delivery unit, she was not triaged but was treated as a “direct admit”.

[47] Dr. Martoglio did not send Mrs. Penate over to the hospital for a CS. In his opinion, the situation did not warrant a CS because a CS is major surgery, and the parameters of the testing did not suggest that there was a rush to deliver the baby. He favoured proceeding with a VBAC, as Mrs. Penate had requested; although, ultimately, the plan of management was to be made by the team in the labour and delivery unit.

July 15, 1996 Labour and Delivery Unit

[48] The hospital’s labour and delivery unit was a relatively small department containing somewhere between 6 or 8 labour rooms. At the nursing station was a blackboard that kept track of patients’ names and status.

[49] SMH was a teaching hospital where residents acted as the frontline staff. Residents were capable of doing vaginal examinations including ascertaining the station of the presenting part. Vaginal examinations are a common procedure done by residents every two hours when a patient is in labour.

[50] An ARM is also a very common procedure done in most labours. It is done multiple times a day in labour and delivery departments. At the time, ARMs were done almost exclusively by residents. The decision to do an ARM is a medical decision made by a physician.

The Events Between 1445 hours and 1515 hours

[51] The Penates arrived at the labour and delivery unit around 1445 hours. They were greeted by a clerk.

[52] Nurse George confirmed that it was usual practice for a call to be made to the labour and delivery unit when a patient was being sent for admission. Normally, information about the purpose for the admission would be given during the call. Nurse George would have retrieved Mrs. Penate’s prenatal records on file in the unit and would have assigned a room and a nurse to Mrs. Penate before her arrival (she ended up being the nurse assigned to Mrs. Penate). She would have had the information contained on the yellow form. Nurse George documented that Mrs. Penate was being admitted from Dr. Martoglio’s office for concerns with the fetal heart rate - poor beat-to-beat variability.

[53] Nurse George brought Mrs. Penate to a room and gave her a gown and a bottle for a urine sample. She set up Mrs. Penate in a hospital bed and showed her the fetal heart rate monitor. She took Mrs. Penate’s vitals signs including temperature, pulse, respiration rate and blood pressure. She took a blood sample and sent it to the lab. She palpated Mrs. Penate’s abdomen using Leopold’s maneuvers to determine the position of the baby in order to place the monitor, locate the fetal head, check to see if the baby’s “bum” was at the fundus, and then around the sides to see where the back was presenting. Nurse George did not assess the station (i.e. where the baby’s head was in the pelvis) during the Leopold’s maneuvers. It is important that this be done during a vaginal examination, to determine if the fetal head is well applied to the cervix as well as where it is in the pelvis. In 1996, nurses at the hospital were not permitted to do vaginal examinations which were only done by physicians. At 1450 hours, she applied the fetal heart rate monitor.

[54] Between 1445 hours and 1500 hours, Nurse George documented that the fetal heart rate was around 180 beats per minutes (“BPM”). Between 1500 and 1515 hours, she documented that it was ranging between 165 and 190 BPM.

[55] Dr. Liu was the resident on duty that day. Dr. Liu testified that she would have been made aware that Mrs. Penate was being sent to the labour and delivery unit based on the call that would have been placed from the clinic. She would have reviewed the information provided as well as the available records. Based on this, she would have available Mrs. Penate’s age, gravida, parity, her due date, her gestational age in weeks, why she was coming in and the plan. She would have been informed by Nurse George about Mrs. Penate’s condition on admission, including the fetal heart problem. Dr. Liu would also have had the information regarding the fetal heart through the monitor and the tracing.

[56] Dr. Liu would have also had available to her the records sent by Dr. Martoglio, which would include his notes on the vaginal examination he had just conducted.

[57] Dr. Liu testified that she would have reviewed all the documents available and spoken with Dr. Martyn (the staff obstetrician/gynaecologist) to come up with a plan of care. They would have discussed the obstetrical history, reviewed the concerns from the clinic, reviewed the fetal heart rate monitor strip and discussed whether Mrs. Penate should be induced. It is expected at teaching hospitals that a resident will speak with the staff physician to decide on the plan of management before doing anything. She would never have done anything without speaking with Dr. Martyn. Dr. Liu does not agree that the plan was for a CS. If so, she would not have performed the ARM.

[58] The plan was for induction. An ARM is routinely done to induce labour. ARMs are performed multiple times a day without any complications – they are one of the most common interactions on a labour and delivery unit. Dr. Liu testified multiple times that she would not have done the ARM if the head was high. If the head was high, an ARM would only be done by a staff doctor or senior resident.

[59] Dr. Liu went to see Mrs. Penate at approximately 1515 hours. She would have performed an abdominal examination which included Leopold’s maneuvers. At that point, she may have made a quick call to Dr. Martyn to let him know that her assessment did not raise any concerns and to confirm that they should go ahead with the agreed upon plan of induction.

[60] At approximately 1520 hours, Dr. Liu performed a vaginal examination to determine dilatation, effacement, consistency of the cervix, the position of the cervix and the station of the presenting part. Nurse George documented the vaginal examination in the chart.

[61] In order to perform a vaginal examination, Dr. Liu would have placed Mrs. Penate in the lithotomy position with her hips and knees flexed. She would have sat on Mrs. Penate’s bed on the right side. She would have put on sterile gloves, applied lubricant and inserted her fingers gently inside Mrs. Penate to do a cervical assessment to confirm dilation and the station of the presenting part in relation to the ischial spines which are a bony landmark.

[62] Dr. Liu was aware of the requirements for conducting an ARM which were that the cervix had to be dilated, the head well applied (engaged) to the cervix and fixed in the pelvis. Dr. Liu repeatedly testified that she is “certain” that she would not have proceeded with an ARM unless those requirements were met. As well, she would have spoken with Dr. Martyn. She testified that she would have gotten in trouble if, as a resident, she did not have authorization to go ahead from the staff physician. Dr. Martyn was very strict, and Dr. Liu was intimidated by him. The consequences of her getting in trouble for not seeking authorization would be serious.

[63] Dr. Liu performed the ARM with an amniohook. She would have placed her right index and middle fingers inside the cervix and taken the amniohook on the surface of her palm or fingers and guided it inside the cervix. She would then have hooked the membranes. Nurse George was present during her interaction with Mrs. Penate, including during the ARM. Nurse George documented that the fetal heart rate was at 165 BPM at the time of the ARM, by placing a dot on the partogram.

[64] Mrs. Penate testified that during the ARM, Dr. Liu instructed Nurse George several times to push on her abdomen. Dr. Liu denied doing this as did Nurse George, and neither were directly cross-examined on this point. Dr. Liu was adamant that she would not have instructed Nurse George to push on Mrs. Penate’s abdomen since the head was already down while she was breaking the water meaning that there would be no reason for this. Nurse George testified that she would not have done this since she was concerned about the fetal heart rate.

[65] After the ARM, Dr. Liu immediately recognized that the cord was presenting. The emergency call button was pressed. The team was quickly assembled for an emergency CS. Nurse George disconnected the monitor and accompanied Mrs. Penate to the operating room. During this period of time, Nurse George made an entry in the hospital chart at approximately 1530 hours that the baby’s heartbeat was in the range of 160 to 190 BPM. Nurse George testified that this reading was taken when Mrs. Penate was in the operating room. Nurse George would have escorted Mrs. Penate to the operating room but would have left once the surgery started at 1532 hours.

[66] Dr. Liu has a memory of the events that transpired once the cord prolapse. Immediately on realizing the cord was presenting, Dr. Liu left her hand in the vagina and elevated the baby’s head off the cord. Dr. Liu rode on Mrs. Penate’s stretcher to the operating room. She did not remove her hand until the baby’s head was delivered.

[67] Dr. Shinoff (“Dr. Shinoff”), the senior resident, became involved once the emergency was declared. She recalls portions of the delivery. She recalls that Dr. Liu kept her hand in Mrs. Penate’s vagina and that there was a discussion between her and Dr. Liu about her being able to feel the heart beating.

[68] Dr. Shinoff believes that she performed the CS under the supervision of Dr. Martyn. Immediately after the CS, she made a note in the chart, and shortly thereafter, dictated an operative note. Dr. Shinoff indicated in both entries that Mrs. Penate had come in for a CS, which was made in error. She did not realize her error until after she was sued in this action and checked the records. Dr. Shinoff also noted in the operative note that after the cord prolapse, Dr. Liu successfully elevated the head off the cord.

[69] The hospital records indicate that Norman was delivered at 1538 hours, 18 minutes after the cord prolapse was recognized.

CREDIBILITY ISSUES (DR. LIU’S FAILED NOTE-KEEPING AND THE ENVELOPE PROVIDED BY DR. MARTOGLIO TO MRS. PENATE)

Dr. Liu’s failed note‑taking

[70] I find that everyone was doing their best to provide their recollection of events which date back some 26 years and that no one was attempting to mislead the court. As stated above, some witnesses have no memory of the events and others have a partial memory only. Some of the records are no longer available and some records were never made.

[71] It is understandable that detailed notes were not made contemporaneously given the nature of the emergency that transpired, but documentation could and should have been made after the fact by Dr. Liu who conceded that this was wrong. She failed to make any note setting out what happened during the ARM and the cord prolapse. She really had no explanation for her failure. She could have made a subsequent note about her involvement in the birth but did not. She is regretful and accepts that she has no excuse. However, that does not mean that her evidence should be ignored and not accepted. She testified about her stress over what happened to Norman and her belief that she was sent home by Dr. Shinoff after the CS. This does not however explain why at no point she documented what had happened. She did write post‑op notes on July 16, 17 and 18, (but not about what happened). Despite the lack of documentation, I find that Dr. Liu was very credible and believable in her evidence regarding what happened. I accept her evidence regarding her standard general practice. (This issue is further dealt with below.)

The Envelope

[72] There is an issue with respect to the document (in the envelope) sent by Dr. Martoglio to the FAU with Mrs. Penate and reviewed by Dr. Mocarski (the obstetrician/gynaecologist on call at the hospital with additional training in sonography) who reviewed the BPP and NST. The physicians who testified, maintained that the yellow form containing the physicians’ notations (including Dr. Mocarski who reviewed the tests done in the FAU) was put in the envelope and given to Mrs. Penate by Dr. Martoglio. Dr. Martoglio has some further notes on the “yellow form” made after Mrs. Penate returned to see him from the FAU, so he must have had that form.

[73] The Penates arrived at the labour and delivery unit around 1445 hours. They were greeted by a clerk. There is a conflict in the evidence about whether the envelope sent by Dr. Martoglio with Mrs. Penate was received by the staff at the labour and delivery unit prior to delivery. Mr. Penate gave evidence that when he tried to give the envelope to the clerk on arrival, she would not take it. Mrs. Penate’s evidence was to the contrary, and twice during her evidence she confirmed that her husband delivered the envelope to the clerk on arrival.

[74] I accept Mrs. Penate’s evidence about the envelope which is supported by the various health practitioners’ evidence. I do not accept Mr. Penate’s recollection. I find that he had an honest but mistaken belief. The only supported conclusion, based on the totality of the evidence, is that the envelope contained the yellow “ref. physician” copy of the NST report and was delivered to the hospital and put in the chart.

[75] The defendant physicians disagree with the assertion by the plaintiffs that “it is clear from the evidence that [the] document did not make it to the labour and delivery floor until after Norman was born”. It is the position of the defendant physicians that the envelope was delivered to the ward clerk prior to Mr. Penate going to register his wife and was placed in the chart. I agree with this position. It makes sense as the information on the document was available to Nurse George and Dr. Liu.

[76] At the hospital, there was a process in place for patients to be admitted directly to the labour and delivery unit, without going through the triage process - this was referred to as a “direct admit”. For a patient to be a “direct admit”, their physician would have to contact the labour and delivery unit, advise that the patient was coming to be admitted and, typically, would also indicate the purpose for the admission.

[77] As part of his usual practice, Dr. Martoglio, or someone on his behalf, would have made a telephone call to the labour and delivery unit ahead of Mrs. Penate’s arrival to ensure that she was well-received and that there were no issues (i.e. overcrowding).

[78] As charge nurse, Nurse George would have recorded the information provided to her about a patient coming to the unit for admission.

[79] Nurse George documented on the labour record that Mrs. Penate was admitted directly to the unit by ticking the “direct admit” box to the right of the documented time (1445 hours) in the admission data section of the form. Nurse George also documented in the nurses’ notes that Mrs. Penate was being admitted from Dr. Martoglio’s office with poor beat to beat variability.

[80] A patient presenting to the labour and delivery unit would usually be met by the ward clerk sitting near the elevators, who would notify the nurse(s) if they were not at the desk. The ward clerk would be responsible for making up Mrs. Penate’s chart and would put Mrs. Penate’s name, physician’s name and other information on the blackboard found in the unit.

[81] Patients coming to the labour and delivery unit also had to be registered through the hospital. This is the process through which the blue hospital card needed to imprint Mrs. Penate’s information on forms, including those required to process bloodwork and other tests, was obtained. Mrs. Penate was officially registered in the hospital system at 15:21.

[82] Both Mr. and Mrs. Penate recall that when they arrived at the labour and delivery unit, the person who greeted them asked if Mrs. Penate was registered and, on hearing she was not, asked Mr. Penate to go and register her.

LAW

Expert Evidence

[83] Expert evidence is necessary to assist the trier of fact in determining whether a physician breached the applicable standard of care. Due to the specialized knowledge of the medical profession, the courts are not to make conclusions regarding a breach of the standard of care (or causation) without supportive expert evidence.[^1] Where there are conflicting expert opinions, the court must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^2]

[84] The role of an expert is to provide fair, objective, and non-partisan assistance to the court.[^3]The independence and impartiality of an expert may be taken into account at the gatekeeper stage as a question of admissibility, and also as a matter of weight once admitted.[^4]

[85] The ultimate conclusion as to the credibility and reliability of a particular witness is not the proper subject of expert opinion, since such evidence runs the risk of usurping the court’s fact‑finding role.[^5]However, an expert may rely on factual assumptions in coming to their opinion.[^6]

[86] The Supreme Court of Canada has confirmed that factual assumptions are often a necessary part of an expert’s opinion:

In many cases, the evidence of experts depends on the hypothesis or assumptions that they are asked to make. The value of the opinion will depend on the validity of the assumptions and is related to weight not admissibility.[^7]

[87] In weighing and assessing expert evidence, the court should consider the following factors:

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

(b) Any reason for the witness to be less than impartial;

(c) Whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial.[^8]

[88] The hospital record indicates the baby was delivered at 1538 hours, 18 minutes after the cord prolapse was recognized.

[89] As noted above, where there are conflicting expert opinions, this court must weigh such conflicting testimony and assess the weight to be given to the evidence.[^9]

[90] If two experts diverge in their opinions, this court should prefer the evidence of whichever expert happens to be more “similarly situated” to the defendant in question.[^10]

THE EXPERTS WHO TESTIFIED

[91] The plaintiffs called Dr. Laurence Oppenheimer (“Dr. Oppenheimer”), who was qualified as an expert in obstetrics and maternal fetal medicine to provide opinion evidence with respect to the standard of care provided by the defendant physicians and the cause and timing of Norman’s brain injury.

[92] The plaintiffs called Dr. Andrew Macnab (“Dr. Macnab”), who was qualified as an expert in neonatology to provide opinion evidence on causation, specifically the cause and timing of Norman’s brain injury.

[93] The plaintiffs called Dr. Alan Hill (“Dr. Hill”), who was qualified as an expert in pediatric neurology to provide opinion evidence on the cause and timing of Norman’s brain injury.

[94] The plaintiffs called Dr. Derek Armstrong (“Dr. Armstrong”) who was qualified as an expert pediatric neuroradiologist to provide opinion evidence on the imaging.

[95] The plaintiffs called Janet Williams (“Ms. Williams”) who was qualified as a nursing expert to provide expert evidence with respect to the standard of care provided by the defendant nurses, and on causation.

[96] The defendant physicians called Dr. Robert Gratton (“Dr. Gratton”), who was qualified as an expert in obstetrics and maternal fetal medicine. He provided opinion evidence on the obstetrical standard of care and the cause and timing of Norman’s brain injury.

[97] The defendant physicians called Dr. Jaques Belik (“Dr. Belik”), a neonatologist qualified to provide opinion evidence on the cause and timing of Norman’s brain injury.

[98] The defendant physicians called Dr. Jean-Claude Décarie (“Dr. Décarie”), who is a radiologist subspecialized in pediatric neuroradiology. He was qualified as an expert in the field of pediatric neuroradiology qualified to give opinion evidence on the cause and timing of Norman’s injury.

[99] The defendant nurses called Donna Brown (“Ms. Brown”) who was qualified as a nursing expert to provide expert opinion evidence with respect to the standard of care provided by the defendant nurses and on causation.

STANDARD OF CARE

[100] The standard of care requires that a physician or nurse exercise the reasonable degree of care and skill of a normal, prudent practitioner of the same experience in the same circumstances.[^11]Physicians and nurses are not held to a standard of perfection.[^12] The law does not demand that physicians and nurses become guarantors of treatment results, nor does it demand infallibility.[^13]

[101] The appropriate standard of care is determined by the trier of fact. Expert evidence is required for the trier of fact to determine whether a physician or nurse has breached the standard of care, as a medical practitioner's conduct is not generally within a person's ordinary knowledge and experience.[^14] Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^15]

[102] To succeed in an action for medical negligence, the onus is on the plaintiff to show that the physician/nurse has breached the standard of care of a reasonable and prudent physician/nurse of the same experience and standing, having regard to all of the circumstances of the case.[^16]

[103] The plaintiff's onus is to prove more than an error in judgment.[^17] A physician/nurse is not liable for an honest error of judgment provided they have exercised their judgment honestly and intelligently in the plaintiff’s best interests.[^18]Where, however, a physician/nurse fails to avail themselves of relevant clinical information or fails to obtain relevant consultations or test results, the failure to do so is not a mere error in their exercise of judgment but constitutes negligence.[^19]

[104] Where there are a number of different techniques available to treat the same medical condition, a physician is permitted to exercise their discretion in determining the best course of treatment for that particular patient (nurses are not involved in determining the course of treatment).[^20]Negligence cannot be assumed simply because, viewed in retrospect, another course of action would have been preferable.[^21]As the court noted in Ball v. Amendola, “[d]ifferences of opinion are a common experience in the medical and other professions”.[^22]Rather, what must be found is that the course of action chosen by the defendant is not a choice which would have been made by a reasonable, competent physician in the circumstances.[^23]

[105] An unfortunate outcome does not constitute proof of negligence. The assessment of a physician’s (and nurse’s) care as against the standard cannot be retrospective and courts should be careful not to rely on the perfect vision afforded by hindsight. Otherwise, the physician/nurse will not be assessed according to the norms of the average physician/nurse of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are only apparent after the fact.[^24]A plaintiff’s case which applies an outcome-based retrospective approach – working backwards to prove negligence based on the result – is fundamentally flawed in law and contrary to repeated admonitions in the case law.

[106] When determining whether there was a breach of the standard of care, the trier of fact should not focus on whether a specific act or omission constituted fault. Rather, the test is whether the defendant physician/nurse behaved similarly to a reasonably prudent and diligent fellow professional in the same circumstances.[^25]

[107] This standard also applies to residents in that, generally, a lack of experience will not reduce the standard of care applied to a junior medical practitioner.[^26]

[108] The practice of medicine requires the exercise of medical judgment. The law requires that reasonable care be taken in the exercise of medical judgment.[^27] A physician/nurse should not be held liable for making an honest error in judgment.[^28] As was stated in Hillis v. Meineri:

The standard of care cannot be elevated such that physicians are expected to take action based upon the worse-case scenario. This is set out in Cardy v. Trapp, [2008] O.J. No. 4547 (Sup. Ct.), at paras. 37-39 as follows:

“It would be wrong to require a physician to practice to a standard that anticipated a worse case scenario as the risk and elevate the standard of practice accordingly. We know the standard of practice applied has a degree of risk. We know now that additional communication and checks could have prevented the delay in obtaining a diagnosis. But the court must be careful not to rely upon the perfect vision afforded by hindsight.

…It might well have been helpful if [the defendant doctors] had conducted their practices to such an elevated standard, but this court is unable to find that they were obliged to so do and that their failure to do so constituted negligence.”

A finding of negligence cannot be based merely on the consequences of medical treatment to a patient. The law requires reasonable care, not infallibility, and recognizes that reasonable physicians make mistakes: Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, [2001] A.J. No. 877 (Q.L.), at para. 80. Physicians are not guarantors of the results of their treatment, and, in medicine, adverse outcomes are often unpredictable or unavoidable even where the medical care has been reasonable. In Lapointe v. Hôpital LeGardeur, supra, at para. 28, the Supreme Court held:

“…[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.”[^29]

[109] It is well recognized that physicians/nurses must exercise their clinical judgment when providing care to a patient. Different physicians/nurses may attribute significance to different factors, depending on their own experience.[^30] The court must be careful not to find liability based on errors of judgment, where that judgment was reasonably exercised. The honest and intelligent exercise of reasonable judgment by a physician/nurse, even if incorrect, is not negligent. “Correctness” has no place in assessing whether the standard of care was met.

[110] When determining whether the defendant physicians/nurses acted in accordance with the applicable standard of care, the court is also not to rely on the benefit of hindsight.[^31] It is an error of law to employ an outcome-based approach when determining whether the defendant physicians/nurses met the standard of care.[^32] Applying an overly critical and retrospective judgment when assessing the exercise of a physician’s/nurse’s clinical judgment would be unfair.[^33]

[111] The fact that the risk of a procedure materializes does not necessarily mean that liability attaches. The standard of care expected of a physician/nurse should not be measured by the result. As confirmed by the Supreme Court of Canada in St-Jean v. Mercier, and more recently by this court in Leckie v. Chaiton, “Professionals have an obligation of means, not an obligation of result.”[^34] This court should not predicate liability based on the result and to do so, would be an error in law.

Usual Practice

[112] Evidence of a physician’s/nurse’s practice, habit, or custom may be admitted as circumstantial evidence of a fact in issue. The usual practice of a physician/nurse is admissible as evidence as to what occurred during a particular patient encounter. This is true whether or not the actions of the physician/nurse have been documented.[^35] Given the passage of time and the documentation problems, reliance on usual practice was required in this case.

[113] The value of the evidence of usual practice lies in the inferences that can be reasonably drawn from it depending on the regularity of the practice and all other evidence, particularly other direct or circumstantial evidence that impacts on whether the practice was followed.[^36] In other words, where a physician/nurse has no specific recollection of their dealings with a patient, they are entitled to testify as to what their ordinary or invariable practice was.[^37]The weight to be attached to the evidence is to be determined by the trier of fact, on a case by case basis.[^38]

[114] Given the normally lengthy time between the encounter at issue and the time of trial, where a physician/nurse has no specific recollection of a particular dealing with a patient, evidence from the physician/nurse as to his or her usual practice can be given significant weight by a court with respect to how the physician/nurse acted on the day in question.[^39]

Record Keeping

[115] The purpose of medical records is twofold. First is to remind the person providing care of the past and present condition of the patient and the treatment already given. The second is to communicate this information to others who may also be caring for the patient.[^40]

[116] A physician’s/nurse’s failure to comply with the regulatory requirement for the maintenance of proper records can amount to a breach of a reasonable standard of care.[^41] However, in order to be relevant in the standard of care analysis, record keeping must play a causative role in the adverse outcome.[^42] Therefore, even if a finding is made that there was a failure to maintain the standard of care with respect to record keeping, this finding can only be relevant to the overall analysis of liability if it is determined that the failure to document in and of itself caused the injury.[^43]

[117] An absence of entries in the medical record does not automatically indicate that because nothing was charted, nothing was done.[^44] This is not a principle of law. Rather, it is a possible conclusion of fact, based on the evidence in each case.[^45] While it was a conclusion reached by the Supreme Court of Canada in Kolesar v. Jeffries, this inference was only drawn after a careful weighing of all the evidence within the specific context of the case.[^46]

[118] When records are incomplete, it is for the trier of fact to weigh the evidence in order to determine what occurred during a particular encounter. This determination necessarily relies on an assessment with respect to the credibility and reliability of witnesses. This assessment must be done within the circumstances of the case.

THE STANDARD OF CARE EXPERTS

Dr. Oppenheimer

[119] The plaintiffs’ submission is that Dr. Oppenheimer’s evidence should be preferred to that of Dr. Gratton. I do not agree. I prefer the evidence of Dr. Gratton who testified in a more objective way and not as an advocate. Dr. Oppenheimer crossed the line into advocacy.

[120] The defendant physicians submit that during his evidence, Dr. Oppenheimer’s assumptions were based by him accepting the evidence of Mrs. Penate and ignoring the defendant physicians’ examination for discovery evidence. (He obviously did not have their trial evidence when he testified.) In particular, the defendant physicians submit the following regarding Dr. Oppenheimer:

(i) His opinion on standard of care was based on his assumption that the head was high at the time of the ARM. (It was not.)

(ii) He accepted the evidence of Mrs. Penate that the nurse was pushing down on her abdomen before the ARM without any regard to the evidence of Dr. Liu and Nurse George that this did not occur. Dr. Liu would not have told Nurse George to do this because the head was not high and did not need to be pushed down. Nurse George testified that she would not do this because of the fetal heart rate. He agreed in cross‑examination that Mrs. Penate may have been mistaken.

(iii) He ignored Dr. Liu’s evidence that she would have spoken to Dr. Martyn before seeing Mrs. Penate and perhaps after she examined her. Dr. Liu testified that she would have been in a lot of trouble if she did not speak with him. (I accept that she spoke with him).

(iv) He ignored Dr. Liu’s evidence that she ascertained the station of the presenting part before performing the ARM and that she would have only proceeded with an ARM if the head was down.

(v) He refused to accept that Dr. Liu successfully elevated the head off the cord despite it being documented in the chart by Dr. Shinoff and Nurse George.

(vi) He refused to accept Dr. Shinoff’s evidence that she had made a mistake in her notes when she indicated that Mrs. Penate was admitted for a CS, calling her evidence illogical.

(vii) He analyzed the NST which was ordered by Dr. Martoglio and agreed that this was a routine indication for the NST as there were no concerns about the pregnancy. The test showed relatively mild tachycardia, meaning that the heart was beating a little bit quickly.

(viii) He noted that the BPP showed normal amniotic fluid, good fetal movement present, but that respiratory movements were absent. He agreed that this is the most commonly missing component from a BPP. In patients at term such as Mrs. Penate, this finding can be missing in up to 45% of cases and with the vast majority of these babies being delivered healthy.

(ix) He understood, based on the records, that Dr. Martoglio’s plan of management after the NST and BPP, was to induce or repeat the BPP and that he would send Mrs. Penate to the hospital and leave the execution of the plan to the doctor in charge. Nevertheless, he criticized Dr. Martoglio’s management plan.

(x) He agreed that Mrs. Penate needed to be delivered and opined that Mrs. Penate ought to have been immediately delivered by CS which was the “only option”. He relied on Dr. Shinoff’s error where she noted that Mrs. Penate was admitted for a CS and did not accept her explanation that this was an error.

(xi) He conceded that VBAC was an appropriate initial plan for delivery. The tracing was non‑reactive, and the BPP was missing breathing, which he referred to as a “flag” (despite other evidence that this finding is irrelevant). He testified that the cervix was not favourable, being 2 cm and 50% effaced, with Mrs. Penate having a history of a CS. He testified after “putting the whole picture together, the appropriate management of this patient is a CS”.

(xii) Under cross-examination Dr. Oppenheimer acknowledged that, according to the prevailing guidelines, there were four options available when faced with Mrs. Penate’s clinical situation, with a BPP of 6/10:

1. Repeat the test which in most cases will be normal.

2. Induction (which is the recommended option where the BPP is 6/10 or “equivocal” and the patient is post-date).

3. Perform an ARM to determine whether meconium is present and to expedite delivery.

4. CS.

(xiii) In regard to the induction itself, Dr. Oppenheimer explained how a patient’s water is broken and a cord prolapse may occur. An ARM should only be done where the head is engaged and well applied to the cervix. A cord prolapse is extremely unlikely to occur when the head is well applied because there is no space for the cord to come down.

(xiv) Dr. Oppenheimer conceded that the assessment of whether the head is well applied is a matter of judgment. Even where the head is well applied to the cervix on examination, it is possible for the head to become dislodged during the procedure and a cord prolapse to occur, a known complication.

(xv) Dr. Oppenheimer admitted on cross-examination that he did not consider that Mrs. Penate may have been mistaken with respect to her evidence that the head was being pushed on by Nurse George at the time of the ARM which was contrary to the evidence of Dr. Liu and Nurse George.

(xvi) Dr. Oppenheimer’s evidence focused on the fact that Dr. Liu was a junior resident and, not knowing anything about her history, he described her as inexperienced. He acknowledged that he would expect a resident to speak to a staff physician before proceeding with an ARM to confirm that it was appropriate. Furthermore, he acknowledged that the assessment of the status of the cervix before an ARM is a routine and common procedure that is regularly performed by residents of all levels of seniority.

Dr. Gratton

[121] I do not accept the plaintiffs’ criticisms of Dr. Gratton.

[122] Dr. Gratton opined that the standard of care was met with respect to antenatal care, the induction of labour, the ARM and management of the cord prolapse. I accept his opinion. He did testify that Dr. Liu’s failure to document anything about the induction and the cord prolapse was a breach of the standard of care. However, as set out more fully in causation, that failure to document had nothing to do with what happened.

[123] Dr. Gratton made certain assumptions based on the evidence given at the examinations for discovery and his clinical experience in the practice of obstetrics at a teaching hospital. In his view, the chart presented a logical sequence of events wherein the care provided was typical and well within accepted standards.

[124] The plaintiffs appear to argue that Dr. Gratton ought not to have made such assumptions and that he could not arrive at an opinion that Dr. Liu met the standard of care because there is no documentation of what she did prior to the ARM. (He did not reach that opinion.) Dr. Gratton made assumptions based on what Dr. Liu had said at her examination for discovery. He agreed that it was not up to him to make findings of credibility.

[125] Dr. Gratton agreed with Dr. Martoglio’s plan for a VBAC as Mrs. Penate had a prior successful VBAC. By that fact alone, Mrs. Penate was a great candidate for vaginal delivery.

[126] The details of Mrs. Penate’s previous pregnancy and delivery in March of 1995 were positive indicators of the prospect of a successful VBAC with her third pregnancy. The time from the ARM to completion of the first stage of delivery was 2.5 hours during Mrs. Penate’s second delivery which is very short. That ARM was conducted by a first year resident, which is common practice and, in his opinion, completely appropriate.

[127] Mrs. Penate’s third pregnancy proceeded uneventfully up to her appointment on July 15, 1996. At that point, she was sent for an NST and BPP, both of which showed minor concerns, warranting that Norman needed to be delivered.

[128] On that testing there was no urgency to the situation. Norman’s weight appeared to be in the normal range. The location of the placenta was away from the cervix and therefore there was no risk of obstruction at delivery. The amniotic fluid was also appropriate, which is a key indicator of fetal health at this stage in the pregnancy. There were also fetal movements. Respiratory movements were absent, but this is something that can appear intermittently, depending on a number of factors (such as the baby sleeping).

[129] On the BPP Norman projected appropriate tone, fetal heart rate and organs. Overall, the score was 6 out of 8.

[130] The NST showed only minimal variability and was scored at 0 out of 2. It did not appear to show any accelerations. An NST can be categorized as reactive or non-reactive. Reactive means seeing two accelerations in a 20-minute interval. If no such accelerations are found, the NST is categorized as non-reactive. Here, the NST was done for only 31 minutes and likely too short to make a definitive finding. Overall, the test showed a slightly elevated baseline, poor variability and was not reactive. One could categorize the NST as equivocal.

[131] The initial note in the records suggests to repeat the test in four hours or to induce. Some guidelines suggest that where a BPP score is 6 out 10, you may reassess the baby in 24 hours or induce. Here, the induction is a more appropriate recommendation than repeating the test because Mrs. Penate was 41 weeks pregnant and there were some signs that were not reassuring.

[132] The best decision was to induce labour as this provides a period of time to observe. Dr. Gratton would not recommend a CS at this juncture, which would be a very aggressive intervention based on a short interval of observation. It is well within the standard of care to proceed with induction of labour, to monitor the fetal heart rate and, if concerns develop, there is an opportunity to intervene and perform a CS if needed.

[133] The record indicates that Dr. Martoglio conducted a vaginal examination, which indicated that the cervix was 50% effaced and 2cm dilated and soft. The condition of the cervix was therefore favourable for induction.

[134] Dr. Gratton expects, based on his experience and usual practice, that there would have been some communication between the clinic and the labour and delivery unit, including the patient’s status and why she was being sent over. Dr. Martoglio’s evidence was that it was his practice to call the labour and delivery unit to inform them of the arrival of a patient and the reasons that she was to be assessed or admitted. In his opinion, Dr. Martoglio met the standard of care.

[135] In a teaching hospital, such as SMH, residents would be the first line of care in assessing the patient, including starting induction and having an ongoing assessment of the labour process and fetal well being. Residents would be actively supervised by the staff physicians, but the residents are on the frontline, managing patient care.

[136] As a PGY-2, Dr. Gratton expects that Dr. Liu would be in communication with the staff physician fairly regularly. In Dr. Gratton’s experience, residents are quite cautious and will have no hesitation in asking questions if they are uncomfortable with a procedure. In this context, it appears that the plan of management was suggested by Dr. Martoglio, with the ultimate decision lying with Dr. Martyn.

[137] Residents are very experienced performing vaginal exams. They would have had training prior to starting their residency, including during elective courses and internships in the area of obstetrics and gynaecology. Vaginal examinations are performed very frequently. Everyone in labour is expected to have a vaginal examination every two hours and more frequently if needed, depending on the progress. This is part of an assessment with which residents would be very familiar.

[138] In order to rupture the membranes, the patient would have to have her knees bent and spread to the side, in a position to open the vaginal and perineal area and then with a gloved hand, assessing through the cervix, feeling the dilatation and effacement and then feeling the location of the baby’s head. At this time, the hook would be introduced, which would go over the top of the fingers and nick a tiny hole in the membrane, allowing fluid to escape. Rupture of the membranes can be very uncomfortable, especially when introducing the hook. According to Dr. Liu’s evidence, this is what was done with Mrs. Penate.

[139] Dr. Gratton’s experience is that even as a fourth-year medical student, he had the opportunity to perform an ARM and, certainly as an intern, he would have been taking the lead on this. He would have been doing ruptures, such as this one, multiple times per day.

[140] An ARM is a very common procedure, done in most labours. Even where the patient is only 2 cm dilated, you would still expect a junior resident to perform the ARM.

[141] There is no information arising following Mrs. Penate’s arrival at the hospital which would have caused concern that the induction could not proceed. In particular, the documentation on the partogram (the actual strip is missing) suggests that there may have been some accelerations, which could represent fetal accelerations coinciding with fetal movements, which would be reassuring.

[142] Dr. Gratton acknowledged that, before proceeding with the ARM, the fetal head should be down and well applied to the cervix. Dr. Liu’s evidence is that she would only have performed an ARM if the head was down and well applied to the cervix.

[143] Further, Dr. Martoglio had just performed a vaginal examination within the last hour or so and his findings were available to Dr. Liu.

[144] There are two possible reasons for a cord prolapse to occur. It may occur if a baby’s head is not well applied to the cervix. If this is the case, a hand or cord can slip down beside the baby and present with prolapse. This most commonly occurs with a preterm baby because there is more potential space around the head enabling the cord to come down.

[145] Occasionally, although the head is well applied to the cervix and fixed, you can break the water and fluid starts to escape slowly and the head starts to move away. If this occurs, it can allow potential space for the cord to slide down, causing a cord prolapse.

[146] Once a prolapse occurs, it is important to preserve the flow through the cord. The proper technique is to elevate the head as much as possible by leaving the hand inside the vagina. According to the records and evidence, Dr. Liu did so which was appropriate.

[147] Overall, based on the totality of the evidence, Dr. Gratton opined that Dr. Liu met the standard of care (other than the failure to document). Assuming that she spoke with Dr. Martyn prior to doing the rupture (and I find she did), it was appropriate for her to perform the procedure, and it was appropriate for her to do so unsupervised.

[148] Dr. Martyn was the staff physician on-call on the day in question. Dr. Liu gave evidence that, typically, Dr. Martyn stayed on the labour and delivery unit while on-call. There was a call room in the labour and delivery unit.

[149] Dr. Martyn was consulted by Dr. Liu about the plan of management for Mrs. Penate. A call had been made from the clinic to the labour and delivery unit to alert staff that Mrs. Penate was being sent over.

[150] At SMH, a teaching hospital, residents were the front line staff and did most of the work. In the circumstances of this case, there was no reason for Dr. Martyn to examine the patient himself. It was appropriate for him to rely on an examination conducted by a resident. This would be even more so given that the patient had just been examined by Dr. Martoglio less than an hour earlier.

[151] It was equally acceptable for Dr. Martyn to allow Dr. Liu to conduct the ARM. This was within the capability of a resident and several witnesses including Dr. Shinoff, testified that most ARMs conducted in a labour and delivery unit are done by residents.

[152] Dr. Gratton would not expect Dr. Martyn to come and see Mrs. Penate prior to the induction. As a second-year resident, it would be Dr. Liu’s responsibility to manage the labour and delivery unit, including starting inductions. Having made the plan with Dr. Liu, nothing further was required of Dr. Martyn prior to starting the induction. Dr. Martyn met the standard of care.

STANDARD OF CARE ANALYSIS

Dr. Martoglio

[153] According to Dr. Oppenheimer, Dr. Martoglio:

(a) Failed to properly communicate a management plan when he sent Mrs. Penate to the hospital;

(b) His plan to induce or have repeat testing done was “incorrect”; and

(c) He failed to obtain Mrs. Penate’s informed consent. (See paras. 245 to 278).

(a) Failure to communicate a management plan

[154] The plaintiffs allege that the care provided to Mrs. Penate in the clinic was disorganized and that there was a failure to communicate. The defendant physicians dispute those allegations and submit that, although the documentation might be a bit confusing and containing some minor errors, the evidence at trial clearly established the sequence of events and how every member of the team had a defined role in the process.

[155] The plaintiffs submit that there was disorganization because it is unclear whether the NST was done before or after the BPP. The evidence favours the BPP being done first but ultimately, it does not matter. Norman’s cord prolapse had nothing to do with documentation.

[156] The plaintiffs rely, in part, on the documentation to suggest there were inconsistencies in the interpretation of the test results. There were no inconsistencies.

[157] The ultrasound portion of the test (the BPP) was scored 6/8 by Nurse King and reviewed by Dr. Mocarski. Nurse King also reviewed the NST tracing and, checked the box in the form as “non-reassuring”. On review, Dr. Mocarski wrote and noted that the strip was “non‑reactive”, and scored it 0/2. However, she mistakenly checked off “reactive” on the NST form. She explained her error at trial and I accept her explanation.

[158] The total score for both tests was 6/10 which result is considered “equivocal”. Dr. Oppenheimer agreed with this. Dr. Martoglio circled the word “equivocal” on the NST form. Given the overall agreement that the test results were equivocal, I agree that it is difficult to understand why the plaintiffs continue to advance the position that the tests results were given different interpretations. In any event, this does not affect the outcome.

[159] The plaintiffs allege that there were additional errors on the NST form that somehow confirm that there was a complete breakdown in communication. I agree that the following errors are minor:

(a) The NST report is erroneously dated May 7, 1996. The date noted at the top left corner is 7/5/96. The date at the bottom right is 15/7/96. Since there is no dispute that the events transpired on July 15, 1996, it is obvious that an error was made.

(b) The indication noted for the test is “postdate” when according to Dr. Mocarski, it was done because of the abnormal BPP. Mrs. Penate was postdate.

(c) According to the form, the NST ran from 1350 hours to 1415 hours when the actual tracing is 31 minutes long. Again, this is a minor discrepancy of no moment.

[160] Dr. Martoglio considered the test results equivocal and sent Mrs. Penate to the labour and delivery unit to be assessed. In accordance with his usual practice, he would have called the labour and delivery unit to alert them that he was sending her to them, giving a brief history. Dr. Martoglio gave Mrs. Penate a copy of the test results, which contained Dr. Mocarski’s note “6/10 induce or repeat BPP” and notes of his vaginal examination. He favoured induction and did not believe a CS was appropriate. Ultimately, the management plan was not his to decide.

(b) Plan to induce or repeat testing was “incorrect”

[161] Dr. Martoglio favoured induction but it was not his role to determine the plan of management. This was left to the staff physician on call in the labour and delivery unit.

[162] Despite the fact that Dr. Martoglio did not dictate the plan of management for Mrs. Penate, Dr. Oppenheimer criticized him for failing to arrange for a CS. No other physician suggested that Mrs. Penate should have had a CS. Dr. Mocarski, whose role it was to interpret the testing and recommend a plan of management, recommended that Mrs. Penate be induced. Dr. Liu as supervised by Dr. Martyn thought that the appropriate plan was an induction. Dr. Shinoff, who reviewed the chart after the fact, was also of the view that an induction was appropriate.

[163] A CS is a serious procedure which carries risks to the mother and baby. A slight abnormality in the testing did not warrant an immediate CS.

[164] Dr. Gratton, whose opinions I accept, was also of the opinion that a CS was not necessary and testified that it would have been a very aggressive intervention.

[165] Mrs. Penate had clearly stated that she wished to deliver by VBAC (which she did in her second pregnancy). She is a Jehovah’s Witness who refuses blood products. She was a good candidate for a VBAC and the likelihood of a successful vaginal delivery was high.

[166] The plaintiffs concede that the finding of an absence of fetal breathing movements on the BPP is essentially irrelevant. Therefore, the only issue behind a CS was a lack of variability over the course of the FHR monitoring. It is not logical to conclude that a CS was the “only option” in these circumstances.

[167] There was agreement among all the parties and experts that delivery was appropriate in a post-term pregnancy with a BPP equivocal score of 6/10.

[168] I agree with the defendant physicians’ submission that the opinion of Dr. Oppenheimer, that Mrs. Penate needed a CS, was one that was developed solely with the benefit of hindsight. Even if the head was high precluding an ARM (and I do not find that), other mechanisms for induction were available such as prostaglandin and oxytocin.

[169] In any event, the test for determining the standard of care does not rest on whether a management plan is “correct” or “incorrect”. The standard requires that the physician exercise reasonable judgment in the circumstances.

[170] Dr. Martoglio met the applicable standard of care.

Dr. Liu

[171] Dr. Liu has some memory of the events but does not recall everything that transpired. She is not to be faulted because she cannot remember events that transpired more than 25 years ago.

[172] Dr. Liu fairly conceded that she should have documented the events immediately after Norman’s delivery or, alternatively, the next day. She regrets not having done so and recognizes that she has no excuse. Dr. Liu testified about what she believed happened based on her routine practice.

[173] Dr. Liu gave her evidence in a straightforward manner and she was credible. She was aggressively cross-examined and never wavered on her position that the head was not high.

[174] The plaintiffs allege that Dr. Liu breached the standard of care on several fronts, which can be summarized as follows:

(a) An induction was inappropriate and a CS was the “only” option;

(b) Dr. Liu induced labour when the plan of management was CS;

(c) Dr. Liu failed to properly assess Mrs. Penate and performed an ARM when the head was high resulting in the cord prolapse;

(d) Dr. Liu failed to obtain informed consent (dealt with paragraphs 245 to 278); and

(e) Dr. Liu failed to document (she did fail to document).

(a) CS was the “only” option

[175] This is essentially the same submission that is made with respect to Dr. Martoglio. The defendant physicians deny that a CS was the only option. The physicians involved were of the view that an induction was the appropriate course.

[176] The plaintiffs suggest that because the fetal heart rate was still tachycardic after Mrs. Penate arrived in the labour and delivery unit, a CS was required. The fetal heart rate had been tachycardic and had minimal variability when Mrs. Penate was in the clinic and no CS was required at point. According to Nurse George’s notes in the chart, the fetal heart variability had improved at the hospital. Sometime between 1500 hours and 1515 hours, she documented the fetal heart rate between 165 and 190 BPM suggesting improvement and increased variability. Dr. Oppenheimer agreed that these findings “possibly” represented improved variability.

(b) Induction of labour when the plan of management was CS

[177] The plan was not for a CS. None of the obstetricians involved with Mrs. Penate recommended one. An ARM would not have been done if a CS was planned.

[178] This submission seems to be based on Dr. Shinoff’s notes in the chart that were made after. the CS. In both her handwritten progress note and dictated operative note, she mistakenly noted that Mrs. Penate had presented to the labour and delivery floor for a CS.

[179] Dr. Shinoff corrected her notes when she was examined for discovery and again at trial. Her trial evidence was given in a forthright manner. She was aggressively cross‑examined and never backed down from her evidence that she had made a mistake in her notes. She only became involved in Mrs. Penate’s case after the emergency was declared. She dictated her note immediately after surgery and would not have had an opportunity to review it as it went to Dr. Martyn for review. Dr. Shinoff testified that the operative note was reviewed and signed off by Dr. Martyn on August 8, 1996, several weeks after the events. Normally, staff physicians review multiple dictated reports at one time and she would not have expected Dr. Martyn to pick up on her mistake.

[180] Dr. Shinoff testified that it was only after she had been sued and had an opportunity to review the chart that she discovered her error. Her note that Mrs. Penate presented for a CS did not make sense to her. At trial, she was no longer a defendant and I agree had no interest in lying or fabricating a story. None of the events that transpired that day are consistent with a plan for a CS. As Dr. Shinoff testified, the notion that Mrs. Penate was to be induced is indeed “all over the chart”.

(c) Dr. Liu failed to assess Mrs. Penate and performed an ARM when the head was high

[181] Dr. Liu was likely alerted to the fact that Mrs. Penate was being sent over to the labour and delivery unit when a call was made from the clinic. Before seeing Mrs. Penate, she would have reviewed all the information available which would have included the pre-natal records, the records sent from the clinic and any verbal information communicated.

[182] Dr. Liu is certain that she discussed Mrs. Penate’s case with Dr. Martyn likely before she assessed Mrs. Penate. She may have spoken to Dr. Martyn again after her examination and before performing the ARM. This would have been a brief discussion to confirm that everything seemed to be as expected and that it was appropriate to proceed with the plan.

[183] Dr. Liu disputes the plaintiffs’ submission that her involvement only started at 1515 hours when she came into Mrs. Penate’s room to assess her. She would have reviewed the documents and any other available information and spoken with Dr. Martyn beforehand. The evidence does not establish that she did everything in 5 minutes.

[184] At the time, Dr. Liu was adequately trained and competent to conduct a vaginal examination and to ascertain the station of the presenting part, among other things. All of the obstetricians who testified, including the plaintiffs’ expert, stated that ascertaining the station of the presenting part was well within the competency of a resident such as Dr. Liu.

[185] Moreover, I agree that the determination of whether the head is in the pelvis is a question of clinical judgment based on a subjective clinical impression.

[186] The cervix was favourable because it was 2 cm dilated, soft and 50% effaced. Performing an ARM in those circumstances was well within the capabilities of Dr. Liu.

[187] The ARM took place in the presence of a very experienced nurse, Nurse George, who testified that she had no concerns about allowing Dr. Liu to perform an ARM because Dr. Martyn would have provided the instructions.

[188] Dr. Liu is absolutely certain that she spoke with Dr. Martyn, her supervisor, and that they agreed on a plan of induction. She is also absolutely certain that she would not have proceeded with the ARM unless Dr. Martyn was aware of the plan and authorized it. Further, she is absolutely certain that she would not have performed an ARM unless the head was not high and was well applied to the cervix.

[189] The fact that the head was low enough to allow for an ARM is corroborated by the documented examination conducted by Dr. Martoglio and his evidence at trial. Dr. Martoglio had conducted a vaginal examination less than an hour earlier. He ascertained that the cervix was “2 cm dilated, soft and 50% effaced”. I accept his evidence that he could have only determined dilatation and consistency if the head was low, and immediately behind the cervix.

[190] In their submissions, the plaintiffs submit that it is “virtually impossible” that the head was engaged because if it was, cord prolapse “cannot occur”. The defendant physicians disagree and rely on the evidence of Drs. Gratton and Oppenheimer’s cross-examination.

[191] Dr. Gratton explained in his evidence:

Q. Well, if we assume for a moment that the head was well applied to the cervix, how can the cord prolapse in that situation?

A. Yeah. So, occasionally, and we’ve all experienced this, unfortunately, is that, you know, although the head is well applied to the cervix and fixed as, as you say, that as you break the water and the, and the fluid starts to escape slowly, the head kind of starts to move away from you, and, in that situation, if the head does that then that can allow enough potential space for the cord or a hand or something like that to slide down.

[192] In cross-examination, Dr. Oppenheimer conceded that it is possible to dislodge the presenting part when performing an obstetrical intervention:

Q. My only point Dr. Oppenheimer is that it’s a possibility that when you do an intervention that it may dislodge the head?

A. Yes.

Q. That happens, right?

A. It can happen its obviously, as I said, something one has to be cautious about.

[193] Prolapse of the umbilical cord is recognized as a rare complication of an ARM. Its incidence is reported in the medical literature. A finding that the standard of care was breached cannot be based on the fact that the rare complication of cord prolapse occurred. The standard of care should not be measured by the result.

[194] Ascertaining the position of the presenting part is a matter of clinical judgment. If Dr. Liu was mistaken about the position of the head (and I find she was not), this was an error in judgment. Dr. Oppenheimer agreed with this.

[195] To support their theory that the head was high and that Dr. Liu knew it was high, the plaintiffs rely on Mrs. Penate’s evidence to the effect that Dr. Liu instructed Nurse George to push on her abdomen immediately before the ARM. The plaintiffs submit that this is evidence that Dr. Liu knew that the head was high but nevertheless proceeded with an ARM by Nurse George push the head down. I do not find that the head was high or that Nurse George pushed the head down. I believe that Mrs. Penate is honestly mistaken about what happened.

[196] Nurse George palpated Mrs. Penate’s abdomen to determine the presentation of the baby, in accordance with Leopold’s manoeuvres. She also could have palpated the abdomen looking for the fetal heart after the ARM. At the time of the ARM, Mrs. Penate would have been attached to the fetal heart rate monitor and a belt would have been placed around her abdomen.

[197] Mrs. Penate denied that her temperature and blood sample had been taken, or that Nurse George had examined her abdomen or applied the belt for the fetal heart rate monitor. This is contradictory to the documentation and evidence. Mrs. Penate remembered an IV being put in but, according to Nurse George, this was not done because she did not have a doctor’s order to do so. Mrs. Penate also said that no one explained to her after the fact what had happened. We know from the chart that Dr. Martoglio visited her after the delivery as did staff from the Hospital for Sick Children. Again, I find that Mrs. Penate was honestly mistaken about her recollection of the events.

[198] Like all the witnesses at trial, Mrs. Penate gave evidence about events that occurred decades ago. Mrs. Penate’s recollection of events is imperfect and, in some respects, unreliable. I do not blame her (nor do I believe anyone blames her). This was a horribly stressful situation. The trauma of the events of July 15, 1996 would have been imprinted on Mrs. Penate’s mind.

[199] After the ARM, Dr. Liu immediately recognized that the cord had prolapsed. She cannot remember how much of the cord she could feel but she immediately elevated Norman’s head to relieve pressure off the cord. All of the obstetricians who testified acknowledged that this was the appropriate thing to do. It is in fact the most common and preferred intervention and it is known to be successful in relieving pressure off the cord and avoiding interruption of the blood flow through the cord.

[200] Dr. Liu met the standard of care.

Dr. Martyn

[201] Dr. Martyn was the staff physician on call.

[202] I find that Dr. Martyn was consulted by Dr. Liu about the plan of management for Mrs. Penate. For the reasons set out above, it was reasonable to proceed with an ARM to induce labour.

[203] At SMH, a teaching hospital, residents were the front line staff and did most of the work. In the circumstances of this case, I agree that there was no reason for Dr. Martyn to examine Mrs. Penate himself. It was appropriate for him to rely on the examination conducted by Dr. Liu. Further, Mrs. Penate had just been examined by Dr. Martoglio an hour or so earlier.

[204] It was acceptable for Dr. Martyn to allow Dr. Liu to conduct the ARM. This was within the capability of a resident and several witnesses, including Drs. Shinoff and Gratton, testified that most ARMs conducted in a labour and delivery unit are done by residents.

[205] Dr. Martyn met the standard of care.

NURSES KING AND GEORGE STANDARD OF CARE

The Experts

[206] The plaintiffs rely on the opinion of Ms. Williams in support of their allegations as against Nurses King and George.

[207] In 1996, Ms. Williams was working as a maternal child nurse at the Belleville General Hospital (“BGH”). The services Ms. Williams provided included antepartum surveillance, fetal assessment and labour and delivery nursing. BGH did not have an out patient FAU and the residents with whom Ms. Williams worked were family practice residents. (not obstetrical residents)

[208] Ms. Williams is not a registered obstetrical ultrasound sonographer and does not have any experience working in an out patient FAU.

[209] Ms. Williams’ in patient labour and delivery practice in 1996 was not the same as that of Nurse George. Dr. Liu was an obstetrical resident and not a family practice resident. Labour and delivery nurses did not perform vaginal examinations at SMH in 1996. Ms. Williams performed vaginal examinations in her practice.

[210] The defendant nurses rely on the opinion of Ms. Brown who completed her BScN at UofT in 1993 and her Masters in Nursing, at UofT in 1996. Ms. Brown became a clinical nurse specialist at SH in October of 1998 and has continued there in roles as a nurse practitioner and patient care manager. She has also been involved in clinical teaching at the UofT, Faculty of Nursing.

[211] From April of 1994 to October of 1998, Ms. Brown worked as a staff nurse on the labour and delivery unit at WCH, which was affiliated with UofT. Ms. Brown has experience with outpatient FAU’s and has worked in both tertiary care/high risk settings as well as non high risk units. She has practical experience working in the same clinical environments as Nurses King and George.

Nurse King

[212] I agree with the hospital/nurses submissions and prefer the evidence of Ms. Brown.

[213] The plaintiffs allege that Nurse King breached the standard of care in her response to the non-reactive NST, her communications with the physician(s) responsible for Mrs. Penate’s care and her documentation.

[214] Nurse King was an ultrasound sonographer working in the out patient FAU and her role in Mrs. Penate’s care ended after she reported the findings of the tests to Drs. Martoglio and Mocarski.

[215] The BPP and NST forms were reviewed by Nurse King. The only confusion about them is the order in which the tests were performed. This is of no significance. The test results were not normal and Nurse King reported them to Dr. Mocarski. The results were available to Dr. Martoglio when Mrs. Penate returned to see him with the envelope.

[216] Nurse King’s interpretation of the NST was documented on the form which was then reviewed by Dr. Mocarski who added her interpretation to the form.

[217] The yellow “ref. physician” copy of the NST report was provided to Mrs. Penate who in turn gave it to Dr. Martoglio who then reviewed the interpretations of Nurse King and Dr. Mocarski. He performed and documented the results of his vaginal examination and gave the form back to Mrs. Penate. He added his notes and interpretation of the tests. That form is contained in the hospital chart.

[218] Ms. Williams, who had no experience working an out patient FAU, dismissed or would not consider the evidence about the usual practices in this out patient environment.

[219] Ms. Brown testified that, while it may be appropriate to extend an NST beyond 30 minutes in an in patient unit, this was not needed in a FAU. It would not have made sense to put Mrs. Penate back on the monitor as a physician needed to determine her next steps as the NST was non‑reassuring.

[220] Ms. Williams agreed that it would have been necessary for Mrs. Penate to be removed from the fetal heart monitor to travel from the clinic to the labour and delivery unit at the hospital.

[221] Nurse King took the appropriate and established steps to relay the results of the tests to Dr. Mocarski and facilitated Mrs. Penate’s return to see Dr. Martoglio. Nurse King met the standard of care. Ms. Williams’ opinion was reasoned backwards from outcome and based on hindsight.

Nurse George

[222] The plaintiffs allege that Nurse George breached the standard of care in her physical examination of Mrs. Penate, her role in the ARM and with respect to her duty to advocate for Mrs. Penate. Again, Ms. Williams dismissed and did not consider the usual practices on the labour and delivery unit, including the fact that nurses did not perform vaginal examinations and that it made no sense for Nurse George to palpate the abdomen to determine the station of the fetal head when a vaginal examination was going to be performed by a Dr. Liu.

[223] The nursing admission assessment includes Nurse George’s physical examination. She palpated the abdomen, using Leopold’s maneuvers to determine the presentation of the baby. This may have required her to lean over the bed so that she could get her arms around both sides of Mrs. Penate’s belly.

[224] The physical examination also included a vaginal examination which in July of 1996 were not being done by the nurses at SMH. Ms. Williams was aware that the practice was for the resident to do the vaginal examination.

[225] A vaginal examination is the best way to determine the degree of the descent of the presenting part, or the station. A vaginal examination is the most accurate way to assess the pelvic architecture and to determine whether the membranes are intact. It is the only way to assess the cervix.

[226] Ms. Williams agreed that it is important that there be an admission assessment when a patient is admitted to the labour and delivery unit. She is critical of Nurse George for not filling in the “Reason for Admission” section on the labour record.

[227] Ms. Brown testified that it was not a concern for Nurse George to have left this section blank. Mrs. Penate had just been assessed by Dr. Martoglio and there was no need for her to go to obstetrical triage for further assessment. In Ms. Brown’s opinion, it was important to get Mrs. Penate set up on a monitor as there had been poor beat to beat variability.

[228] Ms. Brown testified that, in everyday practice, nurses do not assess the position and descent of the baby’s head in the pelvis by abdominal palpation, especially knowing that a physician will be coming to do a vaginal examination.

[229] Ms. Brown opined that Nurse George met the standard of care with respect to the performance and documentation of the nursing admission assessment. I agree.

[230] A decision on whether to do an ARM is a medical decision made by a physician.

[231] Ms. Williams’ criticisms of Nurse George are that if she had information that the head was not engaged, she should have shared this with Dr. Liu; and that she participated in an ARM “when the head was clearly not engaged”. Dr. Liu was very clear that she would not have proceeded with the ARM if the head was not engaged in the pelvis and applied to the cervix. I accept Dr. Liu’s evidence on this point.

[232] Ms. Brown confirmed that the role of a nurse in an ARM is to assist with getting gloves and the amnihook. If asked, they take the fetal heart rate before and after the ARM and assist with anything else that needed to be done.

[233] Ms. Brown testified that it was not below the standard of care for Nurse George to participate in the ARM without knowing that the fetal head was engaged in the pelvis and well applied to the cervix. It was not Nurse George’s role to make that assessment. It was Dr. Liu’s responsibility to make the decision about whether it was appropriate to perform the ARM. Nurse George was assisting and following the direction of Dr. Liu.

[234] In Ms. Brown’s experience, ARMs happen multiple times a day without any complications. ARMS are one of the most common interventions in a labour and delivery unit.

[235] Ms. Brown opined that Nurse George met the standard of care with respect to her involvement in the ARM. I agree.

[236] Nurses and all members of the health care team are advocates for patients. The plaintiffs did not present any evidence about the regulatory or ethical expectations for advocacy for nurses. I do not see any breaches of this obligation.

[237] Ms. Brown confirmed that it is very typical for patients to be admitted to the labour and delivery unit without the nurse knowing the next steps for their medical management. The nurse knows that a patient is coming to have a baby or may assume this from the fact she is being admitted directly to the unit. Nurses would not necessarily be aware of the conversations between physicians.

[238] The nursing plan of care on admission is different than the medical management plan. Nurses do not form the medical management plan. Nurses would not know the medical management plan unless and until it is communicated to them.

[239] Nurse George’s role was to perform Mrs. Penate’s admission assessment, highlight any data from it for Dr. Liu and to otherwise assist as asked.

[240] Nurse George would not have been involved in proposing whether an ARM be done, in deciding whether it was appropriate for a particular resident to do an ARM, in performing an ARM or in having discussions with the patient about an ARM. These are decisions and steps that are made/taken by physicians. It was not Nurse George’s job to advocate for alternate decisions.

[241] In Ms. Brown’s experience a nurse in 1996 would have no reason to be concerned if a resident did a vaginal examination or an ARM. Nurses do not, and are not expected to, monitor or supervise residents. Obtaining a patient’s informed consent is up to the physician. Informed consent conversations can also happen before a patient comes to the hospital for the delivery or at the hospital.

[242] Ms. Brown disagreed with Ms. Williams’ comment that Nurse George should have contacted Dr. Martyn to give him the findings from her admission assessment and to advocate for a CS for Mrs. Penate. There was nothing to raise any “red flags” for Nurse George to even think about a CS. Nurse George had access to the antenatal records which clearly indicated that “VBAC” was the preferred mode of delivery. If Nurse George had a concern, she would have raised it with Dr. Liu, and not with Dr. Martyn.

[243] There was absolutely no reason for Nurse George to be concerned about or question Dr. Liu’s actions. Mrs. Penate had come directly from Dr. Martoglio’s office and was admitted because of concerns with the fetal heart rate. Nurse George completed the nursing admission assessment and contacted Dr. Liu who performed an assessment and implemented a medical management plan. (with Dr. Martyn)

[244] Again, Ms. Williams’ opinion was reasoned backwards from the outcome and based on hindsight. Nurse George met the standard of care.

Informed Consent

[245] The informed consent issue does not involve the defendant nurses, as obtaining consent is not their responsibility. The defendant nurses correctly referred me to Augustine v. Lopes, where the court held:

It is the doctor’s obligation to explain the procedure so the patient may make an informed consent. There are matter that should be looked for by the nurse as part of the nursing function such as whether the patient has false teeth that have to be removed or the patient is not ambulatory and has to be taken from place to place, whether the patient has a special diet, etc. It is not part of the nursing function to review the complete records to make sure that the consent form is signed in accordance with the patient’s understanding.

The fact that it might have been prudent given unlimited time to have the nurse monitor the doctor and the patient to make sure that the patient has a complete understanding of the procures to which she has consented, does not make the hospital liable for failure to do so.[^47]

[246] For the plaintiff to establish a claim on the basis of a failure to obtain informed consent, the plaintiff must prove that the defendant physicians failed to adequately disclose a material risk or an indicated treatment alternative, and that this failure caused the plaintiff’s damages.[^48] This analysis turns on the particular circumstances of the case.[^49]

[247] The first step considers the manner in which consent was obtained and whether the requisite standard of care was followed. The second step considers causation and involves both a subjective and a modified objective inquiry. Not only must the plaintiff establish that she would not have proceeded with the procedure if she knew the risk, but also that a reasonable person in the same circumstances would not have proceeded.[^50] Where a procedure is medically reasonable, the causation hurdle is difficult to overcome because a reasonable person would not usually decline the treatment.[^51]

Step 1: Adequate Disclosure

[248] Physicians are required to outline the material risks and the expected benefits of a treatment or procedure, as well as the alternatives available.[^52]A material risk is one that a reasonable person in the same circumstances would require information about in order to make a decision about the proposed treatment.[^53] Expert evidence is relevant in determining the material risks involved with a particular procedure.[^54]

[249] Physicians do not have an obligation to disclose alternative treatment options unless they are clinically indicated or they would, in the view of the physician, be of some benefit to the plaintiff.[^55]A plaintiff generally requires expert evidence to prove that those alternative treatment options were medically reasonable alternatives.[^56]

Step 2: Causation

[250] Even if the plaintiff establishes that the defendant physicians failed to adequately disclose a material risk or treatment alternative, the informed consent claim will still fail unless the plaintiff establishes causation on both a subjective and objective basis.[^57] Whether or not this test has been met is ultimately a question for the trier of fact, however such a determination may be informed by expert evidence where appropriate.[^58]

(a) Subjective Test

[251] To meet the subjective test, the plaintiff must establish that they would not have consented to the procedure if a relevant treatment option or material risk had been disclosed. However, the subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. No matter how honest the plaintiff, their subjective views on consent will invariably be tainted by the subsequent trauma that actually materialized.[^59]

(b) Modified Objective Test

[252] As a result, the plaintiff must also satisfy a modified objective test: would a reasonable person in the plaintiff's circumstances have gone ahead with the procedure if adequately informed of the attendant risks?[^60] This test is not to be applied with the benefit of hindsight, but rather based on what was known at the time of the consent.[^61]

[253] This assessment includes consideration of any special circumstances relating to the plaintiff that were present at the time. As was described in Reibl v. Hughes, and reaffirmed in Arndt v. Smith:

The test enunciated [in Reibl] relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm in which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any 'special considerations affecting the particular patient in determining whether the patient would have refused treatment if given all the information about the possible risks. [Emphasis in original.][^62]

[254] The plaintiff’s circumstances were a determining factor in Suwary v. Librach, a medical negligence case also involving obstetrical care. The court relied on the fact that the plaintiff had followed her physician’s recommendations with respect to the method of delivery during her two prior deliveries to determine that, even if proper consent had not been obtained, based on her obstetrical history, the plaintiff would have consented to the method ultimately used for her third delivery.[^63] The court went on to find that a reasonable person in the plaintiff’s position would have consented to the method of delivery used because, among other things, “patients almost always go along with the recommendations of their physicians, especially where they have a prior relationship with that physician”.[^64] (This is significant to this case.)

[255] In considering the issue of what a “reasonable person” in the plaintiff’s position would have done, the court may consider evidence from an expert as to how often patients typically decline the procedure in question after being informed of the risks.[^65]

Informed Consent Analysis

[256] It is the plaintiffs’ position that Drs. Martoglio, Liu and Martyn failed to obtain Mrs. Penate’s informed consent. It is the defendant physicians’ position that they did. Critical to this analysis is what a reasonable person would have done in Mrs. Penate’s position at the time, without the benefit of hindsight.

[257] In order to establish a failure on the part of any of the physician defendants to obtain Mrs. Penate’s informed consent, the plaintiffs must first prove that Mrs. Penate was not provided adequate disclosure with respect to the material risks or reasonable treatment alternatives available to her.

[258] The plaintiffs have led no expert evidence with respect to what Mrs. Penate should have been told about her clinical circumstances for the purpose of obtaining her informed consent, including risk. Rather, the plaintiffs rely on general statements found in guidelines and agreed upon by Dr. Oppenheimer, such as that, in 1996, a patient was required to “be informed of what will take place during the induction” and that “the method of induction should be explained to the patient, as should the possible need for CS or repeat induction”. I agree that the plaintiffs have failed to inform the court of what, specifically, Drs. Martoglio, Liu or Martyn were required to tell Mrs. Penate regarding her induction on the date in question, including the material risks, benefits and alternatives.

[259] Cord prolapse is a rare complication at an ARM and no expert evidence was led to establish that it constitutes a material risk which must be disclosed.

[260] The plaintiffs allege that Dr. Martoglio failed to obtain Mrs. Penate’s informed consent. I agree with the defendant physicians that given that he provided no treatment or intervention beyond sending her to hospital to be assessed, this argument makes no sense.

[261] Nonetheless, it is apparent from the evidence that Dr. Martoglio had Mrs. Penate’s informed consent to his plan of care, which included her attendance at the hospital for further assessment by the physician on-call. Even after the events in question, Mrs. Penate returned to see Dr. Martoglio for a post-partum visit, and he later performed surgery on her. I agree that they clearly had a trusting relationship.

[262] The plaintiffs allege that Dr. Liu failed to obtain Mrs. Penate’s informed consent. We heard no evidence, including from Dr. Oppenheimer, with respect to what Dr. Liu was specifically required to discuss with Mrs. Penate in order to obtain her informed consent. Instead, Dr. Oppenheimer testified to generalizations based on guidelines.

[263] On cross-examination, Dr. Liu agreed that, in general, obtaining a patient’s informed consent requires a discussion with respect to the proposed treatment plan, the risks and benefits involved with that plan, and any alternatives to it, which was confirmed by Dr. Gratton.

[264] The surrounding circumstances of the case suggest that Mrs. Penate was aware of the ARM and why it was being conducted. (She had already had one and Dr. Martoglio had discussed her decision for a VBAC and a possible induction.)

[265] On July 15, 1996, Mrs. Penate was past her due date. She had rapid contractions that morning and attended at the clinic. She was examined by Dr. Martoglio and had a discussion with him in Spanish. Dr. Martoglio’s evidence is that he would have told her the baby was okay, there were minor abnormalities and that she should be admitted to the hospital where they might repeat the test or rupture her membranes.

[266] Mrs. Penate was sent to the hospital with her husband, who confirmed that he believed that they were going for delivery. Once at the hospital, she was directly admitted and knew she would be staying at the hospital to deliver the baby.

[267] Mrs. Penate was assessed by Nurse George. Over the course of about half an hour, a number of steps were taken by Nurse George including taking vitals, doing an abdominal examination and placing Mrs. Penate on the fetal heart rate monitor. This would have required some communication between Mrs. Penate and Nurse George, whether verbal or non-verbal. Further, Mrs. Penate had previous experience with this process.

[268] Dr. Liu assessed Mrs. Penate. She would have reviewed her history, and then spoken verbally to Mrs. Penate and received her consent to perform a vaginal examination and the ARM. In order to do so, Dr. Liu would have shown Mrs. Penate that she was putting on gloves and made gestures to indicate her examination. Mrs. Penate was placed on her back with her hips and knees flexed. It is Dr. Liu’s evidence that, if Mrs. Penate had said no at any point, she would not have proceeded.

[269] Mrs. Penate recalls Dr. Liu entering the room, introducing herself, and then a conversation taking place between Dr. Liu and the nurse. She denies that a vaginal examination was performed, even though one was documented. She remembers seeing Dr. Liu with an instrument in her hand, which was then introduced into her vagina.

[270] The plaintiffs allege that there should have been a written consent to the surgical induction of labour. No expert suggested this was the standard of care.

[271] Even if a determination is made that any of the defendant physicians failed to adequately disclose a material risk or treatment alternative to Mrs. Penate, this lack of disclosure did not cause the plaintiffs’ damages. With respect to causation, the plaintiffs rely exclusively on Mrs. Penate’s subjective belief about what she would have done (with the benefit of hindsight) had she been informed of the risks or treatment alternatives with respect to the ARM. As set out below, the evidence on even this subjective component of the test is lacking and not compelling.

[272] It is clear from all of the evidence that she would have consented to the management plan induction by way of ARM. She had ARM with her second pregnancy.

[273] With respect to whether a reasonable person in Mrs. Penate’s position would have consented if the risks or treatment alternatives were known, this element requires consideration of the context, including Mrs. Penate’s medical history and the clinical circumstances.

[274] Prior to Norman’s birth on July 15, 1996, Mrs. Penate had delivered two children: her first in 1993, and her second in 1995. For her second pregnancy, she was followed by Dr. Martoglio, whom she spoke to in Spanish. She agreed to a VBAC and wanted to have a non-medicated birth and avoid surgery. When it came time to deliver, she consented to the performance of an ARM by a resident. It is her evidence that the procedure was clearly explained to her at this time. She delivered within approximately three hours of the ARM being performed. There is documented evidence that Mrs. Penate expressed to her care providers that she did not like and wished to avoid surgery. Mrs. Penate is a Jehovah’s Witness who gave evidence that she did not accept blood products.

[275] After the birth of her second child, Mrs. Penate returned to see Dr. Martoglio for her third pregnancy. She trusted him and signed off on his care and treatment. She expressed a desire for another VBAC and knew that when she went to deliver at SMH, she may be delivered by the doctor on-call.

[276] We know from Dr. Oppenheimer that an ARM is a very common procedure that rarely leads to cord prolapse. Dr. Liu confirmed that patients rarely, if ever, decline an ARM.

[277] Dr. Oppenheimer agreed that the prevalence of cord prolapse is low. According to Dr. Oppenheimer, a cord prolapse cannot occur when the head is well applied to the cervix. Therefore, the risk was negligible, and would not have affected a reasonable person in Mrs. Penate’s position to proceed with the ARM.

[278] Given this clinical picture, even if a determination is made that Mrs. Penate was not provided with adequate disclosure, I accept that a reasonable person in her position provided with proper disclosure would have consented to the performance of the ARM.

CAUSATION

[279] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury. That link is causation.[^66]

[280] In medical negligence matters, the plaintiff must prove two elements of causation: cause‑in‑fact (i.e., factual causation), and legal causation.

i. Factual Causation

[281] Factual causation is the determination of what, in fact, caused the outcome or injury. While factual causation is often straightforward or non-controversial, in other cases, such as this one, the issue of whether there has been a breach of the standard is linked to the factual causation inquiry. For example, in this case, the plaintiffs must establish that Norman’s injuries were as a result of the cord prolapse, which could have been avoided had the defendants not breached the standard of care.

ii. Legal Causation

[282] Legal causation is a different inquiry than factual causation. The plaintiff must prove, on the balance of probabilities, that the injury would not have occurred “but for” the allegedly negligent acts of the defendants. The phrase “but for” means that the defendant’s negligence was necessary to bring about the injury.[^67]

[283] The “but for” test is a factual inquiry that recognizes that compensation for negligent conduct should only be awarded where there is a “substantial connection” between the injury and the defendant’s substandard act or omission. Where the injury may be due to factors unconnected to the defendant’s negligent conduct, the defendant should not be held liable for the injury.[^68]

[284] Scientific proof of causation is not required as the trier of fact is to take a robust and pragmatic approach when determining whether the plaintiff has proven that the defendant’s negligence caused the loss. However, this approach must be applied to the evidence and is not a substitute for evidence. Nor does it modify the amount of evidence required to prove causation. The plaintiff’s burden of proof is not discharged by merely demonstrating that there is a possibility of some causal connection between the defendant’s substandard act or omission and the injury.[^69]

[285] The trier of fact, not any expert, decides whether causation has been established. The trier of fact must consider all of the evidence, including expert testimony, before concluding that causation has been established. In deciding this issue, the trier of fact may draw reasonable inferences from the evidence, as opposed to conjecture or speculation, based on common sense.[^70]

[286] In matters of causal uncertainty, the defendant physician should only be held liable where the plaintiff has proven a substantial connection between the injury and the substandard act or omission. Requiring defendant physicians to demonstrate an alternative cause of injury in matters of causal uncertainty, or to otherwise make an adverse inference of causation on the basis of scarce evidence, effectively reverses the burden of proof and risks turning defendant physicians into insurers.[^71]

[287] The plaintiffs’ legal submissions quote several cases which suggest that in certain situations, the concept of material contribution to injury is to be used as an alternative to the “but for” test. In Clements v. Clements, the Supreme Court of Canada is clear that the proper test for causation is the “but for” test in the vast majority of cases. The material contribution test ought only be used where the “but for” test is found to be unworkable, meaning where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it.[^72] The plaintiffs have advanced no argument as to why the “but for” test is unworkable and why any of the case law and concepts surrounding the issue of material contribution are relevant to this case.

THE CAUSATION ANALYSIS

[288] The plaintiffs’ submission is that they have proven causation and that the ARM caused the cord prolapse and Norman’s brain injury.

[289] The plaintiffs submit that the umbilical cord prolapsed as a direct result of the ARM, resulting in an acute and profound hypoxic-ischemic brain injury to Norman. This injury in turn resulted in his cerebral palsy, seizure disorder and chronic impairment. In support of this conclusion, they submit that Norman’s brain imaging is consistent with what one would expect from an umbilical cord prolapse, and that such injury could not have occurred prior to the ARM.

[290] The defendant physicians have provided a summary of why the plaintiffs have failed to prove causation as follows:

(a) Norman’s blood pH both at birth and later samples, were incompatible with a lack of oxygen for 18 minutes before birth;

(b) Norman’s heart rate was detected and documented during the 18 minutes between cord prolapse and delivery;

(c) Norman had a normal heart rate at birth and thereafter;

(d) Norman’s other vital signs, including blood pressure, were normal;

(e) Norman’s APGAR scores were mildly abnormal;

(f) Norman required minimal resuscitation; and

(g) The imaging cannot pinpoint the time of the injury.

[291] The defendant physicians submit that the entire clinical picture is more compatible with an injury occurring before the cord prolapse, which accounted for the abnormalities seen in the BPP and NST. The wide ranging and broad allegations of negligence made by the plaintiffs are not logically and necessarily connected to the injury.

[292] The defendant physicians submit that the plaintiffs’ theory of causation relies almost entirely on questioning the accuracy of the medical records or a reinterpretation of test results in order to support the theory that Norman’s injury was caused by the cord prolapse.

[293] The defendant physicians submit that the plaintiffs’ theory of causation is based on incorrect assumptions. The plaintiffs allege that there was a complete interruption in the blood flow in the umbilical cord for 18 minutes despite the fact that the head was being successfully elevated off the cord by Dr. Liu and there were two documented fetal heart rates after the cord prolapse. At 1520 hours it was 165 BPM and just after 1530 hours it was between 160 and 190 BPM.

[294] The defendant physicians further submit that the plaintiffs’ theory is inconsistent with Norman’s APGAR scores in the minutes after delivery. APGAR scores are an assessment tool used to determine a baby’s condition after delivery. It is an acronym for appearance (i.e., skin colour), pulse, grimace (i.e., reflex/irritability), activity (i.e., muscle tone), and respiration. Each of the five components is assigned a score of 0, 1, or 2, resulting in a total score that can range from 0 to 10.

[295] Scores are typically assigned at 1, 5, and 10 minutes after birth. The 1 minute APGAR score is used to help determine how much resuscitation is required. The 5 and 10 minute APGAR scores provide some guidance as to the chances of the baby turning out to be neurologically normal as opposed to compromised by an acute event prior to birth. While there is no guarantee that a particular number is evidence of a bad or good outcome, research shows that if the APGAR score is less than 5 at 5 or 10 minutes, there is a greater likelihood of the baby having cerebral palsy as a result of an acute antenatal event. More will be said about how an APGAR is determined when I review Dr. Belik’s evidence.

[296] The defendant physicians submit that the plaintiffs’ causation theory runs counter to the evidence that the cord pH was mildly abnormal at 7.18 and APGARs were 6, 7 and 7 at 1, 5 and 10 minutes, readings that are inconsistent with the baby being completely deprived of oxygen for 18 minutes.

[297] The ultrasound assessment done on June 20, 1996 (37 weeks gestation) was reported as showing normal fetal anatomy, and an estimated weight of 3,107 grams, which is in the 50th percentile for gestation.

[298] On July 15, 1996, the BPP was 6 out of 10. Fetal heart variability was minimal, with tachycardia of 160-165 BPM with no fetal breathing activity present.

[299] Norman was born at 1538 hours. His birth weight was 3,300 grams, which is in the 14th percentile. His length was 49 cm which is in the 3rd percentile and his head circumference was 36 cm, which is in the 49th percentile according to standard growth charts.

[300] At birth, Norman was described in the anaesthetic record as listless, with poor respiratory efforts, pink and with a heart rate at above 100 BPM. The heart rate was measured at 140 BPM between 1539 hours and 1543 hours. After receiving oxygen by mask, Norman showed improvement in respiratory efforts with occasional periods of apnea, but only requiring 2 to 5 bagging breaths. This ultimately resolved spontaneously after which Norman only required supplemental oxygen to maintain saturation.

[301] Vital signs were taken at around 30 minutes of age and were normal. Norman’s blood pressure was 73/43 and his heart rate was 152 to 164 BPM. The respiratory rate was 36 to 48 breaths per minute and his blood oxygen saturation was 96% while receiving supplemental oxygen by mask.

[302] At around two hours of age, seizures were noted, and Norman was treated with anti‑convulsant therapy. Blood tests revealed hypoglycemia, which was treated and which resolved.

[303] Norman was transferred to the Hospital for Sick Children’s (“HSC”) Neonatal Intensive Care Unit for further assessment and management.

[304] Cord arterial and blood gas samples were obtained in the first hours of life. The evidence at trial was that Dr. Shinoff, the chief resident who performed the CS, would have taken the cord arterial sample. Dr. Shinoff testified that she had training in extracting the samples and had done so “hundreds and hundreds” of times prior to Norman’s birth.

[305] Contrary to the plaintiffs’ experts’ criticism that there needed to be paired samples (cord and vein), Dr. Shinoff testified that, at the time, it was not the practice at SMH to take two samples of cord blood to determine blood pH. Changes in that policy were made about 5 years after Norman’s birth. She was not cross‑examined on this point and no contrary evidence was led.

[306] The cord pH samples and base deficit calculated by Dr. Belik, were produced in the below table and are explained further below:

[1]

[2] pH

[3] PCO2

[4] PO2

[5] H ion (normal range: 35-45 mmol/L)

[6] My calculated Base Deficit*

[7] Cord arterial

[8] 7.18

[9] 59

[10] 15

[11]

[12] -5.9

[13] Arterial sample time: 1715 (close to 2h of age)

[14] 7.33

[15] 35

[16] 58

[17] 47

[18] -7.1

[19] Arterial sample time: 1856, taken by the transport team

[20] 7.40

[21] 27

[22] 97

[23] 40

[24] -7.7

[25] Arterial sample time: 2055, taken at The Hospital for Sick Children NICU

[26] 7.35

[27] 32

[28] 39

[29] HCO3+17 mmol/L

[30] -8

[307] All experts agreed that the normal range for pH at birth is 7.2 to 7.38. Norman’s was 7.18, just below normal.

[308] During his first 2 days of life, Norman showed signs of mild to moderate encephalopathy (brain swelling) that included hypertonicity (issue with muscle tone so that his arms and legs, for example, were stiff and difficult to move) and rare seizures only. At the time of transfer to the TGH step-down Neonatal Unit, Norman had a weak suck and mild hypertonicity, but an otherwise normal neurological examination.

[309] Ultrasounds done on July 16 and 19, 1996, showed diffuse cerebral edema (swelling).

[310] A CT of his head was performed on July 22, 1996, at seven days of age and showed diffuse edema with hemorrhaging in the basal ganglia, thalami and high frontal regions (areas of the brain).

[311] An MRI of Norman’s brain conducted on July 5, 2000, at four years of age, demonstrated near total destruction of the brain.

[312] Norman has a severe neurodevelopmental disability with spastic quadriplegic cerebral palsy.

THE EXPERT EVIDENCE ON CAUSATION

Plaintiffs’ causation evidence

[313] In support of their position, the plaintiffs submit that the brain imaging pattern observed in Norman is precisely the pattern one would expect from an umbilical cord prolapse. An acute, near total cessation of oxygen and blood supply results in a particular pattern of injury to the brain, wherein the predominant injuries take place in the deep structures of the brain (the basal ganglia and thalami). They submit that no other clinical event would be consistent or could account for the pattern of injury observed in Norman’s brain imaging.

[314] They further submit that the available evidence illustrates that as a fetus, Norman was healthy: he exhibited normal fetal movements in utero, he was of a normal birth weight, and demonstrated a normal amount of amniotic fluid. Had Norman experienced an acute hypoxic-ischemic brain injury before the ARM, it almost certainly would have caused his death in utero. Further, at the time of the ARM the amniotic fluid was clear, without any evidence of meconium (fetal stool). They submit that meconium would have almost certainly been present had Norman sustained a brain injury prior to the ARM, and the amniotic fluid would not have been clear.

Dr. Oppenheimer

[315] Dr. Oppenheimer acknowledged that there are two possible causes of the injury: (i) Norman was in some way compromised late in the pregnancy prior to the cord prolapse, or (ii) a complete cord occlusion for 18 minutes after the cord prolapse. In Dr. Oppenheimer’s opinion, Norman suffered a hypoxic ischemic brain injury due to a lack of oxygen as a result of the cord prolapse.

[316] In support of his opinion, Dr. Oppenheimer testified that there was no overt evidence of a pre-existing injury, such as obvious signs of poor fetal growth associated with placental dysfunction. The defendant physicians submit that despite having previously opined that the equivocal test results taken at the FAU required an immediate CS, for causation purposes, Dr. Oppenheimer stated that these findings were not significant and while they may have indicated a fetus in distress, did not support that the fetus was brain damaged.

[317] Dr. Oppenheimer also testified that the absence of meconium upon the ARM or at delivery supports his view that Norman was not asphyxiated prior to birth. He testified that you will often (but not always) see meconium in the amniotic fluid if the fetus is compromised prior to delivery.

[318] Dr. Oppenheimer acknowledged that the APGAR scores were only moderately reduced and agreed that the arterial cord pH of 7.18 is only mildly abnormal and inconsistent with what he would expect if the fetus had been asphyxiated in the 18 minutes before birth.

[319] However, Dr. Oppenheimer also opined that the pH result was not reliable. He first postulated that the sample had been taken from the vein and not the artery and that the pH of a sample from the vein would be expected to be higher than the result from the artery. He noted that a venous pH could be completely normal, but the arterial pH could be well into the asphyxiated range and well under 7. However, the defendant physicians submit that he did not speculate about what result the arterial sample would have produced if the pH of 7.18 was venous.

[320] Dr. Oppenheimer testified that it is important to have a “paired sample” to verify their accuracy. Given that there is only one sample in this case (arterial), he opined that it may be from the vein. Dr. Oppenheimer did not have Dr. Shinoff’s evidence, that it was not the policy of SMH at the time to take paired samples, when providing this opinion. Dr. Oppenheimer cited some studies that support a 25% error rate in identifying which vessel was sampled (venous or arterial). He also suggested that the error rate could be as high as 39%, although he provided no authority for that proposition.

[321] As an alternative explanation to explain why the pH was only slightly abnormal, Dr. Oppenheimer testified that if there was complete cord occlusion for 18 minutes, the reported pH level would actually reflect the acid-based status at the time of the cord occlusion and not at the time of delivery. He also advanced the theory of complete cord occlusion despite the fact that Dr. Liu elevated the baby’s head after the cord prolapse (as supported by the evidence of Nurse George and Dr. Shinoff), which he admitted was the appropriate manoeuvre. He did not address the fetal heart rate, which was documented as being 165 BPM immediately after the cord prolapse, between 165 and 190 BPM around 1530 hours and more than 100 BPM after birth (which the defendant physicians submit is inconsistent with 18 minutes of cord occlusion).

[322] In summary, the defendant physicians submit that Dr. Oppenheimer was unable to “get around” Norman’s documented data – no meconium found; the fact that the APGAR scores were only moderately reduced; that paired samples were not done at that time; the evidence that Dr. Liu immediately elevated the head after the cord prolapse; and the fetal heart rate findings after the cord prolapse.

Dr. Macnab

[323] Dr. Macnab also provided opinion evidence on the cause and timing of Norman’s brain injury. The defendant physicians note that he provided this opinion despite the fact that he has not worked in an ICU since 1995 and has not cared for newborn infants since 2002. Since then, he has been working as an academic.

[324] In Dr. Macnab’s opinion, Norman suffered a severe hypoxic ischemic brain injury immediately prior to birth due to the cord prolapse. Dr. Macnab testified that there is a lack of evidence of Norman suffering an injury before his birth. Although there was a lack of fetal breathing on the ultrasound, it is typical that this would periodically not be seen if the baby is sleeping, for example.

[325] Dr. Macnab testified that it is telling that when the membranes were ruptured there was no meconium. In some cases where a fetus is deprived of oxygen, the sphincter will lose control and pass meconium into the amniotic fluid. He was however clear that “it does not always happen”, suggesting only that the absence of this sign “points to” the fact that the baby was in good condition prior to birth.

[326] In Dr. Macnab’s opinion, the condition of Norman at birth, including being limp, flaccid, with poor color, etc., suggests that he was asphyxiated for 18 minutes just prior to delivery.

[327] Dr. Macnab acknowledged that much of the clinical data arising from the period immediately after birth was inconsistent with a fetus that had been deprived of oxygen for 18 minutes just prior to delivery (due to the cord prolapse). This includes the APGAR scores which were relatively normal.

[328] Dr. Macnab testified however that he had “reservations” about the APGAR scores of 6, 7 and 7 at one, five and ten minutes. The number of people involved in Norman’s resuscitation at least implied concern for the baby. Further, he explained that APGAR scores can be very subjective and that there is significant inter-observer variability. In his view, the APGAR scores did not correspond with the description of Norman found in the records.

[329] He acknowledged however, on cross-examination, that the heart rate was greater than 100, which would necessitate the score of 2. Norman was clearly noted to have a pink torso, which would at least trigger a score of 1. He did not dispute that these represent objective factors of at least 3 points. As noted earlier, the defendants provided research showing that a score of less than 5 indicates a greater likelihood of the baby having cerebral palsy.

[330] Dr. Macnab was taken to the American College of Obstetricians and Gynecologists (“ACOG”) task force statement on “Neonatal Encephalopathy and Neurologic Outcome”. In particular, one of the criteria for a diagnosis of acute asphyxia just prior to delivery is an APGAR score of less than 5 at five and ten minutes. Dr. Macnab testified that he questioned Norman’s APGAR scores for this reason and opined that Norman would have met the criteria of having a five-minute APGAR score of less than seven.

[331] In addressing the cord gases, Dr. Macnab opined that they are meant as a measurement of acidity in the baby’s blood at the time of birth and that in order to have an accurate sample, one requires a sample from both the umbilical vein and artery. Again, he did not have the benefit of Dr. Shinoff’s evidence that paired samples were not done at that time.

[332] Like Dr. Oppenheimer, Dr. Macnab also testified that the issue is not a lack of a “paired sample” but the fact that there was a complete occlusion from the cord prolapse, meaning the result reflects fetal status at the time the cord was occluded (and not at birth).

[333] On cross-examination, Dr. Macnab agreed that this theory requires that the cord was completely occluded and that the fetus had no oxygen for 18 minutes prior to birth.

[334] Dr. Macnab, acknowledged the results of a study regarding the effect of asphyxia on fetal monkeys, entitled “Perinatal Asphyxia in a Non Human Primate Model”. That study demonstrated that where there is 18 minutes of cord occlusion, the monkeys universally required resuscitation by intubation, epinephrine and chest compressions, none of which occurred in Norman’s case. The description in the records is that Norman required “minimal resuscitation”.

[335] Dr. Macnab also testified that a fetus can suffer a brain injury in the hours leading to birth and recover somewhat by the time of birth. In these cases, babies may have reassuring APGAR scores and a normal pH.

[336] In summary, Dr. Macnab was also unable to “get around” Norman’s documented data. He stressed the lack of evidence regarding Norman having an injury before birth. He suggested that the lack of meconium points to the fact that Norman was in good shape before birth. He agreed that the APGAR scores were relatively normal but questioned their accuracy. He could not dispute the results of the “monkey” study. He was critical of the lack of a paired sample but did not have the benefit of Dr. Shinoff’s evidence when he wrote his report.

Dr. Hill

[337] Dr. Hill also provided opinion evidence with respect to the cause and timing of Norman’s brain injury. Dr. Hill has not provided any on‑call services since 2003, and has no role in labour and delivery of infants, or in the resuscitation of infants at birth nor has he ever contemporaneously assigned APGAR scores. While the plaintiffs suggest that his evidence should be preferred because he was the only neurologist who testified, I agree that his evidence was duplicative of the other experts and that he did not bring a different perspective to the case.

[338] In Dr. Hill’s opinion, Norman suffered a severe acute near total type of hypoxic ischemic brain injury, which occurred during the 18 minutes when the umbilical cord was prolapsed.

[339] Dr. Hill testified with respect to the pattern of injury on imaging. There is typically a distinction between a partial prolonged hypoxic insult affecting the cerebral cortex and an acute near total hypoxic injury which causes injury to the basal ganglia and thalami (the central structures of the brain).

[340] Dr. Hill agreed in cross‑examination that the imaging studies reflect injuries which are referable to both acute and prolonged injuries in addition to the central structures, which are expected to be more susceptible to acute injury. He testified, however, that if the acute insult occurs for a long enough period of time, it starts to involve other structures of the brain. In his view, this explains why the imaging shows features that can be attributed to two types of insult.

[341] Dr. Hill also testified that where a fetus suffers an insult (but not yet an injury) it can compensate by diverting resources to vital organs or use glucose as energy for metabolic processes. For a certain amount of time, the fetus can tolerate cell hypoxia by using glucose as an alternative to oxygenation. This compensation mechanism will fairly quickly exhaust itself, at which time irreversible brain injury occurs.

[342] Dr. Hill testified that the fetus tolerated initial stress during the labour process, but that the cord prolapse constituted an acute type of insult. Dr. Hill testified that there was no evidence of brain damage prior to the cord prolapse.

[343] On cross-examination, Dr. Hill denied the plain wording is his report which stated that the fetus was stressed prior to birth and likely suffered an injury in utero followed by a subsequent injury at the time of cord prolapse. Dr. Hill resiled from that opinion stating, “What I meant to say was that the stress does contribute because it has used up fetal resources. Although the stress identified by Dr. Oppenheimer had not caused permanent irreversible injury, it contributed because it weakened the fetus in terms of withstanding what came next…”

[344] In contrast to Dr. Oppenheimer’s opinion that the cord pH sample was likely extracted from the vein, Dr. Hill’s evidence was that the fact there is no paired sample is irrelevant. The issue is that there was complete cord occlusion for 18 minutes which caused the injury. His opinion is that the sample reflects the condition of the fetus prior to the cord occlusion.

[345] Dr. Hill is committed to the theory that there was complete cord occlusion for 18 minutes causing the injury, however he as well, was unable to “explain away” all the factors related to Norman’s clinical presentation at birth which are inconsistent with a fetus that suffered 18 minutes of complete cord occlusion as a result of a prolapse.

[346] Despite having no experience in assigning APGAR scores, Dr. Hill’s evidence was they looked “suspicious” because the scores were reasonably consistent at 1, 5 and 10 minutes. His evidence was that this is “unusual”, causing him to doubt the APGAR scores.

Dr. Armstrong

[347] Based on the brain imaging, Dr. Armstrong opined that the pattern of injury was due to profound asphyxia or a profound drop in blood pressure or a profound sudden cessation of oxygen to the fetus.

[348] Based on the brain imaging, Dr. Armstrong testified that the evolution of the brain swelling visible on imaging suggested that the injury occurred on the day of birth.

[349] Dr. Armstrong acknowledged that through the imaging studies one cannot be precise with respect to the timing of the injury (similar to the evidence provided by Dr. Décarie).

The Defendant Physicians’ Evidence on Causation

Dr. Belik

[350] The essence of Dr. Belik’s evidence is that cord prolapse is not necessarily associated with catastrophic injury and that there are several clinical factors in this case which lead to the conclusion that Norman did not suffer a complete cord occlusion as a result of the cord prolapse in the 18 minutes before birth.

[351] Dr. Belik testified that there are studies which reviewed outcomes in cases of cord prolapse. In one study, the authors reviewed 33,519 deliveries. Out of that number, 37 were cases of cord prolapse and none of those babies ended up having neurological impairments. Only five were admitted to ICU for a few days but this was for issues such as lung development, not because of seizures or any other neurological disorder. That study concludes that, provided cord prolapse is rapidly diagnosed and the baby delivered within 30 minutes from recognition of the complication, the outcome is generally favorable.

[352] Dr. Belik also testified about Norman’s condition at birth. When faced with 18 minutes of no oxygen supply to the fetus (meaning the cord was completely occluded), it would be critical to look at how the baby presents within minutes of birth, including vital signs, behaviour, how much resuscitation was required to address the heart rate and blood pressure, as well as the color of the baby. The blood gases and APGAR scores are a semi‑objective way of ascertaining the condition of the baby. Norman’s condition at birth did not establish a complete occlusion at birth.

[353] Dr. Belik testified about the study “Perinatal Asphyxia in a Non Human Primate Model” (which had been put to Dr. Macnab on cross examination). That study involved fetal monkeys, which are the closest analogy to humans and can best reflect what actually happens in the human fetus and newborn. In that study, the authors completely occluded the umbilical cord for 18 minutes, creating asphyxia, and then looked at how the newborn monkeys were behaving.

[354] In all cases, the baby monkey required endotracheal intubation (passing a tube through the trachea to provide breathing and to have the lungs expand). All of the monkeys required chest compressions, which is typically required when the heart rate is 0 or very low. All of the monkeys also required epinephrine, a medication used to jump start the heart. Norman required none of these things.

[355] The study also assigned APGAR scores to the monkeys. The APGAR scores for those monkeys who were deprived of oxygen for 18 minutes were an average of 0.4 at one minute. Most of the monkeys either had no score or a very low APGAR score. Norman’s APGAR scores were not consistent with this.

[356] In addition, blood gases were taken from the monkeys’ cords. Dr. Belik testified that when cells do not have enough oxygen available, they produce acid, which lowers the pH. A normal pH is around 7.35. In the monkey study, the pH was 6.77, which is very low. A pH of 6.77 compared to 7.35 is a big clinical difference. Norman’s pH, at 7.18, was not that low.

[357] The base deficit is another indicator. A high base deficit is suggestive of acidosis. In the study, the normal monkeys had a base deficit of 6.7, and those asphyxiated for 18 minutes had a much higher base deficit of around 20.

[358] It is Dr. Belik’s opinion that the monkey study demonstrates that asphyxia leads to a huge acid build up in the blood. In Norman’s case, a cord blood gas sample was taken at birth, and another was taken around 1.5 hours of age. The first result was only mildly abnormal, with a pH of 7.18, which is slightly less than the expected 7.2. The pCO2 of 59 was normal. The base deficit he calculated was 5.9. Overall, these numbers do not reflect 18 minutes of asphyxia.

[359] Dr. Belik testified that, if there is an interruption of the blood flow caused by a cord occlusion, the blood sampled after birth may not be representative of the last minutes before the baby’s birth. Therefore, it is instructive for clinicians to review the subsequent sample taken after birth. If the sample taken at birth did not reflect the severity of the oxygen deprivation at birth, the blood gas obtained at 1 to 1.5 hours of life would do so. In this case, the pH taken at approximately 1.5 hours was 7.33, which is normal. The base deficit increased slightly, but not in keeping with an 18 minute oxygen deprivation before birth.

[360] Dr. Belik disagreed that it would be expected that the second sample would be normal due to recovery of the baby. It usually takes hours for a baby born with significant acidosis to clear that from the system. It is submitted by the defendant physicians that Dr. Hill’s evidence to the contrary was unsupported and should be given no weight, particularly since he has not practised in a considerable time and has had little direct involvement with the care of newborns.

[361] Dr. Belik testified about another study, entitled “The Ontogeny of Hemodynamic Responses to Prolonged Umbilical Cord Occlusion in Fetal Sheep”. This study tracked what happened to a newborn’s sleep heart rate and blood pressure after prolonged cord occlusion. In this study, the heart rate was followed up to 30 minutes after cord occlusion. The author observed that, as soon as an occlusion occurred, the heart rate began dropping. At around 5 minutes the heart rate was already close to half what it was initially. The heart rate dropped 50 percent initially and then continued to drop within 15 to 30 minutes.

[362] In Norman’s case, Nurse George noted at 1530 hours (10 minutes after the cord prolapse) that the fetal heart rate was 160 to 190 BPM. After birth, a note written at 1538 hours indicates that there was a heart rate greater than 100 BPM. Between 1539 hours and 1543 hours, the rate was 140 BPM.

[363] A normal heart rate at birth will average 140 to 160 BPM but can be as low as 100 or even 80 BPM. If there had been a complete cord occlusion for 18 minutes, Dr. Belik would expect the heart rate to be either absent or very low, in the range of 20 to 40 BPM.

[364] Dr. Belik testified that the blood pressure values are very instructive. A blood pressure of 60/40 in a full term baby is normal. If there had been 18 minutes of cord occlusion, one would expect the blood pressure to be very low because the heart may not be beating rapidly or at all. Norman’s blood pressure was 73/43, which is normal.

[365] Dr. Belik’s opinion is that the resuscitation of Norman was not vigorous. In a clinical setting, vigorous or aggressive resuscitation includes intubation, chest compression, drugs and other invasive types of resuscitations, none of which occurred with Norman. The defendant physicians submit that it is important to note that, of all the causation experts, Dr. Belik is the only physician who has worked with infants at delivery in the last 20 years. On the other hand, Dr. Macnab has been working as an academic for the last 20 years, and Dr. Hill has never had a practice of taking care of newborns.

[366] Dr. Belik testified how the APGAR scores are calculated and explained the objective elements of the scoring system. The defendant physicians submit that Dr. Belik’s evidence in this regard significantly undermined the plaintiffs’ evidence that the scores are wrong or “suspicious”.

[367] The analysis with respect to a newborn’s colour (i.e., appearance) is straight-forward. All babies are blue before they are born. The question is whether the baby has changed from blue to pink at birth. If the baby is pink in the trunk or torso but arms or feet are blue, this is called acrocyanotic and the baby would be assigned a score of 1. If the baby is pink throughout, a score of 2 is assigned.

[368] Assigning a score for heart rate (i.e., pulse) is also straight-forward. A score of 0 is given if the baby is born without a heart rate. If the heart rate is less than 100, the score is 1. If the heart rate is greater than 100, the score is 2.

[369] Reflex/irritability (i.e., grimace) refers to how the baby responds to stimulation. The most common way to stimulate a baby is to poke them around the nose, often done by applying suction tubing to clear secretions from the mouth and nose. If you touch the entrance of the nostril with the suction and the baby does not move, you would assign a score of 0. If the baby grimaces or makes a face, a score of 1 would be assigned. If the baby reacts vividly, crying or tries to pull away you would assign a score of 2.

[370] Muscle tone (i.e., activity) assesses the weakness of the baby. A neurologically intact, fully awake baby would be actively moving and would have arms and legs in a flexed position. Such a baby would be assigned a score of 2. If the baby is not moving but you observe that the legs and arms are partially flexed, you would assign a score of 1. If the baby is limp and not moving and does not seem to have any tone and the arms and legs are fully extended, you would assign a score of 0.

[371] Lastly, a score is given for respiration. This requires an assessment of whether the baby is consistently breathing and making normal efforts. If the baby is breathing regularly, you can see the chest moving and assign a score of 2. If the baby is barely crying and you cannot see the chest moving or it is moving less frequently, you would assign a score of 1. A baby who is not breathing would be assigned a score of 0.

[372] In Norman’s case, the total scores were 6 at 1 minute, 7 at 5 minutes and 7 at 10 minutes. These are good scores.

[373] If Norman had suffered a severe and recent brain injury (from the cord prolapse), Dr. Belik would expect the 1 minute score to be very low, in the 0 to 2 range. Such a baby would require aggressive resuscitation, intubation, chest compression and drugs to see a better score at 5 and 10 minutes. Even then, you would expect the score to be 3 to 5, certainly not 7 and without the need for aggressive resuscitation. This was not the case with Norman.

[374] The defendant physicians submit that the evidence suggests a possibility that the placenta was not performing well and that the fetus suffered a lack of oxygenation in the time leading up to birth.

[375] The fetal growth chart taken at 37 weeks indicated Norman was in the 50^th percentile. By the time of the BPP on July 15, 1996, Norman was in the 30^th percentile which is still normal but not as good as before. Dr. Belik’s interpretation, admittedly in hindsight, is that the fetal growth was impaired.

[376] In addition, the birth records indicate that Norman’s body weight was 3300 grams, his length was 49.5 cm and his head circumference was 36 cm. A head circumference is a relatively good indicator of brain growth. As noted earlier, the birth weight in Norman’s case is plotted at the 14^th percentile, which is normal. His length was in the 3^rd percentile, at the bottom of normal. His head circumference however plotted close to the 50^th percentile. There is therefore a discrepancy between the head size and the length and weight of the baby. Fetuses typically grow in a proportional manner. The defendant physicians submit that the fact that the weight and length were in the bottom of normal raises concern about growth impairment in the later part of gestation.

[377] Dr. Belik testified that there is a phenomenon in utero that, if there is limited oxygen supply to the fetus, the fetus will protect the brain. In essence, the fetus re-arranges the way oxygen is supplied to different organs to favour the brain. In such a case, the brain will continue to grow at a normal rate, but the body growth will slow down. This is what is known as “head sparing” and is indicative of a placenta that is functioning poorly and may have caused brain injury.

[378] The plaintiffs submit that the physicians involved in Norman’s care did not attribute Norman’s condition at birth to placental insufficiency or poor fetal growth. However, the fact that the records from the HSC do not comment on fetal growth or the possibility of placental insufficiency is not probative. Those clinicians were tasked with treating Norman, not arriving at an opinion on the cause of the brain injury.

[379] Dr. Belik acknowledged that the brain imaging studies showed profound injury including injury to the deep structures, the basal ganglia and thalami. He agreed that injury to this portion of the brain has typically been associated with an acute and profound antenatal injury. However, the imaging studies also demonstrate injury to other areas of the brain, such as the cortex.

[380] Dr. Belik testified that recent literature suggests that there are no specific distinctions as between the pattern of injury and the causative factor. Injuries to either the basal ganglia and thalami or other areas can be related to different types of injuries including acute, severe, short events or repeated prolonged events of low oxygen to the fetus.

[381] Overall, when putting the entire clinical picture together, Dr. Belik testified that there is no question that there was a hypoxic ischemic injury to the brain. There is also no dispute that oxygen deprivation to the brain occurred. It is most likely, however, given how well Norman was at birth, that the injury did not occur in the last 18 minutes before birth. We are then left with the alternate theory that it happened hours before birth. Dr. Belik testified that this could be at 6, 12 or possibly 24 hours before birth. In his opinion there was a critical event followed by a degree of recovery before Norman was born.

[382] Dr. Belik’s credibility was attacked because, when referring to timing, he used the phrase “within 24 to 48 hours” in his report. There was also a considerable amount of time spent attempting to deconstruct the meaning of the phrase “perinatal” or “around the time of birth”. Ultimately, the defendant physicians submit that these issues are nothing more than a question of semantics and not a contradiction.

[383] It was also put to Dr. Belik that he contradicted previous sworn evidence that where there is fetal distress, the fetus will always pass meconium. Dr. Belik denied that there was any contradiction in previous testimony where he was simply explaining the concept. The defendant physicians submit that, in any event, it is not clear why such importance was attached to this issue when the plaintiffs’ own experts acknowledged that the presence of meconium is not always found where there is fetal distress.

Dr. Gratton

[384] Dr. Gratton’s opinion is that the evidence in this case is not consistent with a complete cord occlusion for 18 minutes prior to birth. It is more likely that there was a pre-incident event which led to the injury.

[385] Norman’s heart rate on delivery is compelling. The rates recorded were always more than 100 BPM. If Norman had a complete cord occlusion for 18 minutes, the heart rate would very quickly decrease, and, at the time of delivery, you would expect the heart rate to be absent or profoundly decreased.

[386] In addition, if a fetus was subjected to 18 minutes of complete cord occlusion, the APGAR scores would be critically low, less than 3 at 1 minute, not 6, 7, and 7.

[387] Dr. Gratton testified that the cord blood gases provide an opportunity to assess the baby’s oxygen and pH, which reflect how the baby is doing metabolically in an objective way. Samples are taken at every delivery. A normal pH indicates that the acid base balance is normal. If a baby is acidotic, the pH will be low, reflecting the fact the baby has had no or decreased oxygen or has not been able to clear CO2 through the placenta. The normal range for arterial pH is 7.2 to 7.38. Norman’s was 7.18, not that low.

[388] If there had been complete occlusion for 18 minutes, Dr. Gratton would expect the pH to be profoundly low, probably less than 7.

[389] Dr. Gratton also noted that Dr. Liu attempted to lift the head off the cord and that the cord was found at the shoulder at the CS. This suggests that the cord was not compressed by the head.

Dr. Décarie

[390] Dr. Décarie testified that the fact that the basal ganglia is involved in the injury is suggestive of severe, rather than merely moderate, lack of oxygen and blood supply. The involvement of the basal ganglia usually involves an event that is sudden and severe in onset.

[391] However, the images show injuries to almost all the brain, which makes a specific opinion on causation more challenging, according to Dr. Décarie.

[392] It is difficult to ascertain the exact timing of injury because edema usually lasts for 5 to 7 days, a very rough estimate. It points to something that occurred “around the time of birth”, but nothing more specific.

[393] Dr. Décarie did not review the entire clinical record and was therefore unable to comment definitively on a potential mechanism of injury. He testified however that imaging alone does not enable us to suggest that the cord prolapse is responsible. It does not have a signature to itself. It is the job of the clinician to identify the most probable causative event.

Factual Causation

[394] Factual causation is the determination of what, in fact, caused the outcome or injury. While factual causation is often straightforward or non-controversial, in other cases, such as this one, the issue of whether there has been a breach of the standard is linked to the factual causation inquiry. The plaintiffs must establish that Norman’s injuries were a result of the cord prolapse, which could have been avoided had the physicians not breached the standard of care.

[395] The plaintiffs submit that, factually, the cord prolapse led to a complete occlusion of the umbilical cord for 18 minutes and caused the brain injury. The defendant physicians, however, submit that the plaintiffs have not satisfied their burden of establishing that it is more likely than not that the cord prolapse caused the injury.

[396] The blood sample taken from the umbilical arterial cord at birth had a pH of 7.18, which all experts agree is mildly acidotic and inconsistent with significant oxygen deprivation in the moments before birth. The plaintiffs’ experts testified that the result is “unreliable”.

[397] The plaintiffs also submitted that the blood sample was not taken from the artery but from the vein. There is no evidence of this and in fact the sample was taken by Dr. Shinoff who had experience doing so. She testified that it came from the artery.

[398] The plaintiffs then suggested that one cannot be sure it was an arterial sample because there were no paired samples. Dr. Shinoff confirmed that at the time, the practice at SMH was to take one sample only, and that paired sampling did not start until about 5 years later. There was no evidence led by the plaintiffs to contradict Dr. Shinoff’s.

[399] There was no evidence led about what another sample would have yielded. The defendant physicians submit that the plaintiffs’ theory of it being a vein sample is entirely speculative.

[400] The plaintiffs also submit that because the cord was completely occluded from the moment that the cord prolapse occurred, the blood sample taken at birth reflected the oxygenation status at the moment before the cord prolapse occurred.

[401] To arrive at this conclusion, one must first accept that Dr. Liu’s documented effort to place her hand in the vagina and lift the head off the cord (as supported by Dr. Shinoff and Nurse George), was entirely unsuccessful. It is also incompatible with Norman’s condition at birth.

[402] The defendant physicians submit that the plaintiffs’ suggestion that the documented clinical evidence of Norman’s condition at birth is misleading or wrong must be dismissed. Drs. Belik and Gratton testified that deprivation of oxygen in a fetus for 18 minutes would be expected to lead to death, or severe depression at birth requiring aggressive resuscitation with intubation, chest compressions and epinephrine. No such intervention was required in this case. Rather, at birth, Norman demonstrated:

• A heart rate greater than 100 BPM

• Normal blood pressure

• Spontaneous breathing with minimal assistance

• Some tone, colour and reflex

• APGAR scores of 6, 7 and 7 at 1, 5 and 10 minutes.

[403] Norman’s APGAR scores are not “suspicious” or questionable. They are compatible with a baby who required some minimal resuscitation. The plaintiffs did not call the members of the resuscitation team to challenge the records and their documented findings. These individuals had all previously been defendants in the action and their expected evidence as a result would be known. I agree with the defendant physicians that a negative inference must be drawn from the plaintiffs’ failure to call these individuals.

[404] The evidence of Norman’s severe injury on imaging alone does not confirm that the cord prolapse caused the injury. The plaintiffs have the burden of proof and merely pointing to the fact that there is no other obvious clinical event on the day of birth that may have caused a severe brain injury, even to the deep structures of the brain, does not satisfy that burden.

[405] There is no dispute that injuries can and do occur in utero, and that such injuries are linked to placental insufficiency. The fact that such an injury occurred in this case cannot be ruled out.

Causation Analysis - Dr. Martoglio

[406] Even if it is found that Dr. Martoglio breached the standard of care (which he did not), the case against him fails on causation.

[407] The plaintiffs allege that Dr. Martoglio failed to communicate a management plan, failed to obtain informed consent and failed to offer an immediate CS.

[408] There is no dispute that the ultimate decision making as to the management plan rested with Drs. Martyn and Liu. In fact, the plaintiffs allege that Dr. Liu was required to complete an assessment and discuss the management plan with Dr. Martyn. In turn, Drs. Martyn and Liu were responsible for the final decision making with respect to the management plan. None of Dr. Martoglio’s actions with Mrs. Penate caused the outcome.

[409] For the same reasons, I agree with the defendants’ submission that it makes little sense to pursue a theory that Dr. Martoglio was negligent in his failure to obtain informed consent or to recommend that an immediate CS be carried out. The uncontroverted evidence is that Dr. Martoglio was not responsible for determining the plan, obtaining consent or carrying out these procedures. Further, there is no evidence that Dr. Martoglio was responsible for recommending an immediate CS. In fact, the evidence establishes that an immediate CS was not appropriate.

Causation Analysis - Dr. Liu

[410] There are numerous allegations of failing to maintain the standard of care advanced against Dr. Liu, which, I agree, fail on causation even if Dr. Liu is found to not have met the standard of care. (I do not find that she did not meet the standard of care other than with respect to her failure to document what happened.)

[411] There is no evidence that the failure to document the assessment had any effect on Norman’s care. Once the cord prolapse occurred and a CS was performed, a note about what Dr. Liu did and the reason for the induction would not have made any difference to the care being provided. By that point, Mrs. Penate had undergone the CS. There is no causal nexus between the fact that Dr. Liu did not make adequate documentation and the fact that Norman suffered brain damage.

[412] Similarly, the general allegation raised by Dr. Oppenheimer that there were subsequent failures to document had no effect on the outcome given that the cord prolapse had already occurred, which is the event the plaintiffs submit caused damages.

[413] Norman’s injuries may not have been prevented even if a CS had been performed. Finding so would require that I be satisfied that the cord prolapse was the factual cause of the injury, which I do not find.

[414] The plan of management is not what caused the outcome. Deciding on a plan of induction did not directly lead to the cord prolapse. Rather, it is the execution of the plan of induction by way of ARM which is alleged to have caused the injury. The plan of induction, in and of itself, did not necessarily entail an ARM. As the experts explained, there were other options for induction such as oxytocin, which could have caused the presenting part to become engaged. In other words, the induction could have been conducted in a different manner or at a different time, which could have prevented the injury. In this way, the failure to proceed to CS is not a necessary cause.

[415] Regarding the allegation of failure to obtain informed consent, the defendant physicians submit that any failure to disclose a material risk had no effect on the outcome, because a reasonable person in Mrs. Penate’s position would have consented to an ARM regardless of the risks disclosed.

[416] The evidence of Dr. Liu and the obstetrical experts is that if the head was high on vaginal examination and Dr. Liu knew this, then she failed to maintain the standard of care. Performing an ARM under these conditions substantially increases the risk of cord prolapse and Dr. Liu, as a junior resident, should not have performed an ARM under such conditions (as Dr. Liu confirmed in her evidence). The defendant physicians in their submissions, concede that it is open to the court to find causation if it is found as a fact that the head was high, and Dr. Liu knew it was high when she did the ARM. I accept Dr. Liu’s evidence and I do not find that the head was high.

[417] However, the defendant physicians also submit that it is open to the court to find that the act of inducing labour by ARM was not causative of the injury if it is found that Dr. Liu made an error in judgment when she believed the head was low enough to allow an ARM. (I do not find this.) The evidence is that the determination of whether the fetal head is well applied to the cervix is a matter of clinical judgment. Dr. Oppenheimer acknowledged on cross-examination that Dr. Liu may have been mistaken about the head being low enough. Even if this were the case, causation is not proven.

[418] There was also expert evidence that the head could have been applied but dislodged during the ARM.

Causation Analysis - Dr. Martyn

[419] The plaintiffs submit that if Dr. Martyn was consulted, he fell below the standard of care in electing to proceed by induction as opposed to proceeding with a CS.

[420] As set out above, the decision to not proceed by a CS is not, in and of itself, a necessary cause of the injury.

[421] The plaintiffs also allege that, if notified, Dr. Martyn failed to supervise Dr. Liu in her assessment and conduct of the ARM. The defendant physicians submit that no evidence was advanced by the plaintiffs to explain how this is causative of the injury. In particular, Dr. Oppenheimer did not explain what the supervision would have entailed and how it would have affected the outcome in this case. He did not explain whether Dr. Martyn was required to conduct the vaginal examination and rupture the membranes himself or was supposed to be present while Dr. Liu did so. If Dr. Martyn was merely present, it is not at all clear how this would have affected the outcome if he relied on Dr. Liu to conduct the examination and the ARM.

Causation Analysis – Nurse King

[422] Nurse King performed the BPP and interpreted the NST in accordance with the order(s) and direction of the physicians involved in Mrs. Penate’s care. Nurse King appropriately reported these findings to two physicians and had no further involvement in Mrs. Penate’s care.

[423] The nursing care provided by Nurse King has no connection to the cord prolapse or the outcome in this case. There is no basis for a conclusion that the nursing care provided by Nurse King is a factual or legal cause of the cord prolapse and/or Norman’s injuries.

Causation Analysis – Nurse George

[424] Similarly, there is no basis for a conclusion that the nursing care provided by Nurse George is a factual or legal cause of the cord prolapse or Norman’s injuries. Ms. Williams suggested that Nurse George somehow contributed to the occurrence of the cord prolapse by pressing on the maternal abdomen.

[425] There was considerable discussion at trial over whether Nurse George may have applied “fundal pressure” or otherwise pressed on Mrs. Penate’s abdomen during the ARM. A nurse would only apply fundal pressure if asked to by a physician.

[426] Nurse George was also firm in her evidence that she would not have applied fundal pressure in this case since she was concerned about the fetal heart rate.

[427] Mrs. Penate’s evidence at trial, was that the nurse pushed on her tummy around four times and pushed the baby with force and she screamed as it was painful because the doctor introduced the instrument in her vagina, and she felt something explode. Mrs. Penate initially testified, that the nurse was getting on the bed, putting her knee on the bed, the last time she pushed on her abdomen; in cross-examination, she admitted that she did not recall the nurse putting her knee on the bed.

[428] While Mrs. Penate has some recollections of the events of July 15, 1996, many of these are conflated and are not accurate. Mrs. Penate likely remembers Nurse George using Leopold’s maneuvers to palpate her abdomen and determine the presentation of the baby. This intervention is part of the Nursing Admission Assessment and is documented. Mrs. Penate denied that this happened, but there is no question that it did. Mrs. Penate does not remember most of her interactions with Nurse George during the documented Nursing Admission Assessment and mis‑remembers when the IV was started. All of this is understandable, given the passage of time and the obstetrical emergency that occurred.

[429] While Nurse George does not have any independent recollection of this case, she made a concerted effort to assist the court in recounting the usual and established practices on the labour and delivery unit where she worked for 30 years. Nurse George worked her entire career as a labour and delivery nurse, and in the early years of her practice, worked as a midwife doing home deliveries. From the time Mrs. Penate arrived at the unit, Nurse George was concerned about the fetal heart. As a charge nurse, she would not usually have had a patient assignment, but she met Mrs. Penate and took her to a room to do the Nursing Admission Assessment and check the fetal heart rate.

[430] I accept the evidence of Nurse George and Dr. Liu, that fundal pressure would not have been used in this case.

[431] Mrs. Penate was a “direct admit” to the labour and delivery unit. Nurse George appropriately completed the Nursing Admission Assessment and deferred performance of the vaginal examination to the obstetrical resident, in keeping with the practice at the hospital. Information about the fetal station and the application of the fetal head to the cervix was solely in the purview of Dr. Liu, who performed the vaginal examination. Nurse George would have provided assistance to Dr. Liu in accordance with Dr. Liu’s directions. When the cord prolapse occurred, there was an immediate response by Nurse George and the team to immediately transfer Mrs. Penate to the operating room for a CS.

[432] The nursing care provided by Nurse George is not factually or legally related to the cord prolapse and/or Norman’s injuries.

Summary on Causation

[433] In summary, I find that the plaintiffs have failed to discharge their burden of showing that the alleged breaches by the defendant physicians/nurses were the factual and legal cause of Norman’s brain injury. The evidence of Norman’s condition shortly after birth is simply inconsistent with having been completely deprived of oxygen for the previous 18 minutes. The plaintiff’s position requires either ignoring or finding flaw in nearly every assessment of his condition after birth: the APGAR scores, blood pH, heart rate, blood pressure, the absence of meconium, and the fact that he required minimal resuscitation. While the damage to the deep structures of Norman’s brain — evidenced by the plaintiff’s brain imaging evidence — is suggestive of an acute event prior to birth, there remains considerable uncertainty as to the timing of such an event. Assessing all of the evidence, I am not persuaded on a balance of probabilities that the ARM caused Norman’s brain injury, even if I were to have found a breach of the standard of care. Additionally, there is no connection between the nursing care provided by Nurses George or King, as it was not a factual or legal cause of the cord prolapse and/or Norman’s injuries.

CONCLUSION

(i) Drs. Martoglio and Martin met the standard of care;

(ii) Informed consent was obtained;

(iii) Dr. Liu met the standard of care except or her failure to document;

(iv) Nurses King and George met the standard of care;

(v) Norman did not suffer a brain injury due to the cord prolapse;

(vi) If there were any breaches of the standard of care (Dr. Lui’s failure to document is a breach), they were not causative of Norman’s brain injury.

J.E. Ferguson J.

Released: August 29, 2022

COURT FILE NO.: CV-14-515860

DATE: 20220829

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NORMAN PENATE, a person under disability by his Litigation Guardian,

LUZ PENATE, WILLIAM A. PENATE, JESIEL PENATE, WILLIAM S. PENATE, and the said LUZ PENATE personally

Plaintiff

– and –

A. MARTOGLIO, G. LUI, M. DANELICE, J. WASSERMAN, J. CHONG, S. SHINOFF, MARY BEVERIDGE and DAVID BEVERIDGE as Executors of the Estate of DONALD MARTYN, ST. MICHAEL’S HOSPITAL, S. KING‑FORBES, S. SLOAN, R. STEWART, C. STARK, M. LAU, M. GEORGE, M. TITCHNER

Defendants

REASONS FOR DECISION

J.E. Ferguson J.

Released: August 29, 2022

[^1]: Chan v. Tang, 2012 ONSC 2050, at para. 124; Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), at para. 31 [“Bafaro”], aff’d 2010 ONCA 188, 260 O.A.C. 70.

[^2]: Leckie v. Chaiton, 2021 ONSC 7770, at para. 25 [“Leckie”], citing Crawford (Litigation Guardian of) v. Penney, [2003] O.J. No. 89 (S.C.), at para. 245 [“Crawford”], aff’d (2004), 2004 CanLII 22314 (ON CA), 26 C.C.L.T. (3d) 246 (Ont. C.A.), leave to appeal ref’d [2004] S.C.C.A. No. 496.

[^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 4.1.01; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 2 [“White Burgess”].

[^4]: White Burgess, ibid, at paras. 45, 54.

[^5]: Parliament v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 44.

[^6]: Rules of Civil Procedure, supra, r. 53.03(2.1).

[^7]: R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at para. 53.

[^8]: Latin v. Hospital for Sick Children, 2007 CanLII 34 (Ont. S.C.), at para. 146 [“Latin”].

[^9]: Leckie, supra, at para. 25, citing Crawford, supra, at para. 245.

[^10]: Leckie, ibid, at para. 65.

[^11]: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804, at p. 817 [“Wilson”]; Crits and Crits v. Sylvester et al. (1956), 1956 CanLII 34 (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.), at p. 508 [“Crits”], aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991; ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 33 [“ter Neuzen”]; Watson, supra, at para. 22.

[^12]: Watson, ibid, at para. 24.

[^13]: St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53 [“St-Jean”]; Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, at para. 80.

[^14]: Bogdon v. Folman, 2013 ONSC 222, at para. 35, citing Bafaro, supra, at para. 31.

[^15]: Crawford, supra, at para. 245.

[^16]: Crits, supra, at p. 508.

[^17]: Samms v. Moolla, 2019 ONCA 220, at para. 73 [“Samms”], citing Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, at p. 363 [“Lapointe”].

[^18]: Samms, ibid, at paras. 83, 92.

[^19]: MacGregor v. Potts, [2009] O.J. No. 3581 (S.C.), at para. 128, aff’d 2012 ONCA 226, 289 O.A.C. 334.

[^20]: Bafaro, supra, at para. 37, citing Lapointe, supra, at p. 362.

[^21]: Turkington v. Lai (2007), 2007 CanLII 48993 (ON SC), 52 C.C.L.T. (3d) 254 (Ont. S.C.), at para. 38.

[^22]: Ball v. Amendola, 2009 CanLII 55309 (ON SC), [2009] O.J. No. 4114 (S.C.), at para. 137.

[^23]: Lapointe, supra, at pp. 362-63.

[^24]: Lapointe, ibid, at p. 361; ter Neuzen, supra, at para. 34; Crits, supra, at pp. 508-9.

[^25]: St-Jean, supra, at para. 53; Hillis v. Meineri, 2017 ONSC 2845, at para. 64 [“Hillis”].

[^26]: Vancouver General Hospital v. Fraser, [1952] S.C.R. 36 at p. 46; Adair Estate v. Hamilton Health Sciences Corp., 2005 CanLII 18846 (Ont. S.C.), at para. 135.

[^27]: Samms, supra, at para. 73.

[^28]: Lapointe, supra, at p. 362; Hillis, supra.

[^29]: Hillis, ibid, at paras. 62 and 63.

[^30]: Wilson, supra, at pp. 811-12.

[^31]: Lapointe, supra, at pp. 362-63.

[^32]: St-Jean, supra, at para. 53; Bafaro, supra, at para. 24.

[^33]: ter Neuzen, supra, at para. 34.

[^34]: St-Jean, supra, at para. 53; Leckie, supra, at para. 17; Wilson v. Byrne, 2004 CanLII 20532 (Ont. S.C.), at para. 28.

[^35]: The Estate of Carlo DeMarco et al. v. Dr. Martin et al., 2019 ONSC 2788, 57 C.C.L.T. (4th) 100, at para. 67 [“DeMarco”].

[^36]: Hutterli et al. v. Scott, 2021 ONSC 1426, at para. 113.

[^37]: Jones-Carter v. Warwaruk, 2019 ONSC 1965, at para. 266.

[^38]: Sommerville v. Fine, 2021 ONSC 5638, at para. 68.

[^39]: Armstrong v. Royal Victoria Hospital, 2018 ONSC 2439, at para. 70, aff’d on appeal 2021 SCC 1; Lee (Litigation guardian of) v. Southlake Regional Health Centre, 2015 ONSC 7509, at para. 58(j).

[^40]: Watson, supra, at para. 76; Adams v. Taylor, 2012 ONSC 4208, 94 C.C.L.T. (3d) 144, at para. 36.

[^41]: Watson, ibid, at para. 78.

[^42]: Watson, ibid, at para. 79; Adams v. Taylor, supra, at para. 43.

[^43]: Cooper v. Valiulis, 2012 ONSC 664, at para. 150.

[^44]: DeMarco, supra, at para. 65; Ghiassi v. Singh, 2017 ONSC 6541, at para. 25, aff’d 2018 ONCA 764.

[^45]:Holmes v. Gibson, 2020 ABQB 322, at para. 42.

[^46]:Kolesar v. Jeffries et al., 1977 CanLII 6 (SCC), [1978] 1 S.C.R. 491, at pp. 496-97.

[^47]: Augustine v. Lopes, [1994] O.J. No. 2646 (Gen. Div.), at para. 19-21, aff’d [1998] O.J. No. 642 (C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 168.

[^48]: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880, at p. 884 [“Reibl”]; Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192, at p. 210 [“Hopp”]; Stepita v. Dibble, 2020 ONSC 3041, at para. 83 [“Stepita”]; Brown v. Dr. Baum, 2020 ONSC 1541, at para. 5 [“Brown”].

[^49]: Brown, ibid, at para. 10.

[^50]: Reibl, supra; Hopp, supra.

[^51]: Revell v. Chow, 2010 ONCA 353, 266 O.A.C. 184, at para. 59 [“Revell”].

[^52]: Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 11(3).

[^53]: Health Care Consent Act, ibid, s. 11(2); Revell, supra; Watson v. Dr. Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 83 [“Watson”].

[^54]: Videto et al. v. Kennedy (1981), 1981 CanLII 1948 (ON CA), 125 D.L.R. (3d) 127 (Ont. C.A.), at p. 133 [“Videto”], citing Reibl, supra, and Hopp, supra. See also, Wallace v. Ralph-Edwards, 2019 ONSC 899 at para. 56 [“Wallace”], and Leckie, supra, at paras. 34, 47.

[^55]: Stepita, supra, at para. 83; Bafaro, supra, at para. 41; Bollman v. Soenen, 2014 ONCA 36, 315 O.A.C. 90 [“Bollman”].

[^56]: Stepita, ibid, at para. 83; Bollman, ibid, at para. 27; Suwary v. Librach, 2015 ONSC 2100, at para. 138 [“Suwary”].

[^57]: Stepita, ibid, at para. 85.

[^58]: Solomon v. Ali, 2018 ONSC 3287, 49 C.C.L.T. (4th) 125, at para. 234, aff’d 2019 ONCA 677, 57 C.C.L.T. (4th).

[^59]: Bollman, supra, at paras. 22, 25.

[^60]: Bollman, ibid, at para. 28.

[^61]: Revell, supra, at para. 60.

[^62]: Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539, at para. 6.

[^63]: Suwary, supra, at para. 139.

[^64]: Suwary, ibid, at paras. 139-140.

[^65]: Wallace, supra, at para. 22.

[^66]: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 6 [“Clements”].

[^67]: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at pp. 319-20, 326-27; Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 23 [“Hanke”]; Clements, ibid, at para. 8.

[^68]: Hanke, ibid, at para. 23; Clements, ibid, at para. 20; Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 43.

[^69]: Clements, supra at para. 46; Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193 at para. 10.

[^70]: Durnin, et al .v. Victoria Hospital, 2012 ONSC 320, at para. 79.

[^71]: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at paras. 53-55, 66-68; Snell v. Farrell, supra at pp. 326‑27.

[^72]: Clements, supra, at para. 13.