COURT FILE NO.: CV-11-432267 & CV-17-567925

DATE: 20240129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-11-432267

Cindy Bendah by her litigation guardian, Helene Silverman, Vehoshua Bendah, Sequoia Bendah, by her litigation guardian, Helene Silverman, Yosef Aiello, by his litigation guardian, Leah Aiello, Sheldon Silverman and Helene Silverman

Plaintiffs

– and –

Dr. Dan Farine, Dr. Yoav Vinon, Dr. Tharani Kandasamy, Sr. Amita Singwi, Dr. Meera Chopra, Dr. Danny Lovatsis, and Mount Sinai Hospital

Defendants

D. Embury & D. Pacheco, Counsel for the Plaintiffs Cindy Bendah, Sequoia Bendah, Sheldon Silverman & Helene Silverman

J. Singer, Counsel for the Plaintiff Yehoshua Bendah

F. McLaughlin, M. Graham, & M. Watkins, Counsel for the Defendants Dr. Farine, Dr. Yinon, Dr. Kandasamy, Dr. Fleming & Dr. Simitciu

Court File No. CV-17-567925

Cindy Bendah by her litigation guardian, Helene Silverman, Yehoshua Bendah, Sequoia Bendah and Yahav Bendah, by their litigation guardian, Yehoshua Bendah, Sheldon Silverman and Helene Silverman

Plaintiffs

– and –

Dr. Ivor Fleming and Dr. Merita Simitciu

Defendants

Bronwyn Martin & Robin Moodie, for the Intervenor Jerome Morse

HEARD: January 10-13, 16-20, May 23-26, 29-31, June 1, 2, 5, 27, 2023

Reasons For Judgment

Darla A. Wilson J.

[1] In this action, the Plaintiff, Cindy Bendah (“Cindy”), through her mother and litigation guardian, Helene Silverman, claims for damages as a result of injuries she suffered following the labour and delivery of her son which took place at Mt. Sinai hospital (“the hospital”) on August 10, 2009. After the delivery of her son, Yahav, by Caesarean section, Cindy suffered a cardiac arrest and the accompanying deprivation of oxygen, which has left her in a permanent vegetative state. What happened that day can only be described as a tragedy, one that has forever changed the lives of the Silverman family, as well as the life of Yehoshua Bendah (“Yehoshua”), the spouse of Cindy, and the lives of their children.

[2] She brings this action alleging negligence in the care and treatment provided by the following physicians: Dr. Farine, the staff obstetrician; Dr. Yinon, the obstetrical fellow; Dr. Kandasamy, the second-year obstetrical resident; Dr. Fleming, the staff anesthesiologist; and Dr. Simitciu, the second-year resident in anesthesiology. The other Plaintiffs assert their claims pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) for loss of care guidance and companionship as well as for pecuniary losses.

[3] The Plaintiffs commenced an action against the obstetricians and the hospital on August 5, 2011. The Plaintiffs commenced another action arising from the same set of facts against the anaesthesiologists on January 18, 2017. Both actions claim damages on behalf of the Plaintiffs arising from the care and treatment provided to Cindy at the hospital while she was a patient giving birth to her son in 2009.

[4] The quantum of the Plaintiffs’s damages was resolved prior to the trial, and the issues of breach of the standard of care and causation were left for trial, as well as the issue of the applicable limitation period concerning the claims against Dr. Fleming and Dr. Simitciu.

[5] The Plaintiffs allege breaches of the applicable standards of care against all of the physicians and assert that the negligence caused the injuries to Cindy. Both liability and causation are disputed by the Defendants.

[6] The issues for determination are:

• Did the five doctors meet the applicable standards of care in their provision of treatment to Cindy?

• If not, did the negligence cause the injuries to Cindy? To put it another way, but for the identified breaches of the standards of care, would Cindy have suffered the injuries?

• Is the action against the anaesthesiologists barred by the limitation period?

Background

[7] Cindy was a healthy 38-year-old woman at the time she presented at the hospital for the delivery of her baby at 40 weeks, 2 days gestation. She was married to the Plaintiff Yehoshua. In November 2007, at Mt. Sinai Hospital, Cindy had given birth by Caesarean to her daughter Sequoia; a section had been necessary due to the brow presentation of the fetus.

[8] On August 10, 2009 she had a spontaneous rupture of her amniotic membranes at 0420h that morning, and she and her husband went to the hospital. She was admitted to the birthing unit and was hopeful of a vaginal birth.

[9] Cindy’s labour commenced and progressed until she was 6 cm dilated. An ultrasound demonstrated that the baby was in brow presentation. Cindy continued to labour without progression. Around 1850h, after a discussion with the doctors and her husband, Cindy elected to undergo a repeat section and at 1952h she was transferred to the operating room (“OR”) for surgery.

[10] Dr. Farine, Dr. Yinon, and Dr. Kandasamy were on call that evening. Dr. Farine was the staff obstetrician and most responsible physician (“MRP”) for Cindy and in that role, he directed the obstetrical and surgical care for his patient. Dr. Yinon was a qualified obstetrician and at the time of these events, he was in the final year of his second fellowship, in maternal fetal medicine. Dr. Kandasamy was a second-year resident in the obstetrical program. Both Dr. Yinon and Dr. Kandasamy worked under the supervision of Dr. Farine. Dr. Fleming was the staff anaesthesiologist on call, with Dr. Simitciu, a second-year resident, assisting him. Dr. Farine and Dr. Fleming as the staff physicians on call were also responsible for attending to the needs of other patients on the floor that evening.

[11] Cindy had been given intravenous fluids earlier that day and was also given an epidural for pain management. Dr. Yinon commenced the surgery at 2035h and a healthy baby boy, Yahav, was delivered at 2047h. The uterine incision extended into the uterine artery during the delivery; this is known as a uterine extension. It is not disputed that extensions occur with Caesarian deliveries and they are not suggestive of negligence.

[12] During the course of the surgery, Cindy was, at times, hypotensive and tachycardic; she was hemodynamically unstable and required repeated doses of phenylephrine and ephedrine to increase/maintain her blood pressure. Dr. Fleming did not impart this information to the obstetrical team. They were unaware of her hemodynamic instability.

[13] Following the delivery of the placenta at 2049h, Dr. Yinon noted bleeding in the area of the left side of Cindy’s uterus. Cindy’s uterus was placed outside of her abdomen so Dr. Yinon and the others had a better view of the area of bleeding, which was emanating from the left uterine artery. Dr. Yinon and Dr. Kandasamy clamped the location of the bleed to temporarily stop the bleeding and Dr. Yinon did several sutures to achieve hemostasis; that is, to stop the bleeding from the source. Because the bleeding was a complication, Dr. Yinon had Dr. Farine paged to return to the operating room and he arrived at approximately 2122h. He observed the area and noted additional bleeding, so some more sutures were placed.

[14] At 2142h Dr. Farine called urology/urogynecology to come to the operating room and check for possible damage to Cindy’s ureter or other organs. Dr. Farine commented Cindy appeared pale and he discussed the issue of a potential blood transfusion with Dr. Fleming, who felt that a blood transfusion was not indicated based on the amount of blood that Cindy had lost; they decided to obtain some blood work results. Blood for testing was drawn from Cindy at 2205h. At 2227h, an arterial blood gas sample was taken and sent to the lab for analysis.

[15] The urology team did not arrive quickly, and Dr. Fleming decided to convert Cindy from an epidural anaesthesiology to general anaesthesiology because she was uncomfortable and nauseous, and this was completed at 2205h. Her uterus continued to be exteriorized. She was intubated and put on mechanical ventilation after the administration of the general anaesthesiology. At 2222h the urology team arrived, and a cystoscopy was undertaken and was completed at 2308h. Following completion of the cystoscopy, Dr. Yinon and Dr. Kandasamy placed Cindy’s uterus in its place, and commenced suturing Cindy’s abdomen, which was completed at 2327h.

[16] Sometime between 2315h and 2327h, Dr. Fleming left the operating room to attend to another patient. On the instructions of Dr. Fleming, at 2330h Dr. Simitciu commenced the reversal agents to reverse the effects of the general anaesthesiology. Cindy was hypotensive (low blood pressure) and tachycardic (fast heartbeat) and at 2339h it was determined she was too unstable to be extubated or transferred to the Post Anaesthesiology Care Unit and a second dose of the reversal agent was administered. At 2345h, Cindy was moved to a stretcher in anticipation of her transfer.

[17] At 2355h, it was noted she was unresponsive with no measurable blood pressure. She was placed on ventilation; Dr. Fleming and Dr. Farine were called for assistance and arrived very quickly; resuscitation was commenced at 0006h. A Code Blue was called at 0007h and the Code Blue team arrived within minutes.

[18] Cindy was transfused with 2 units of packed red blood cells by 0046h. She was transferred to the ICU. It was noted she was actively bleeding, and her abdomen was distended. A laparotomy was performed at 1030h on August 11, 2009 and it was noted Cindy was bleeding from everywhere and that she had disseminated intravascular coagulopathy (“DIC”). Large amounts of blood were removed from her abdomen and Cindy underwent a subtotal hysterectomy.

[19] As a result of her arrest, Cindy suffered a permanent brain injury and did not regain consciousness; she remains in a vegetative state at the Toronto Grace Hospital. There is no expectation of improvement. While there is no dispute between the parties that Cindy suffered a profound brain injury as a result of the cardiac arrest, what caused the arrest is hotly contested.

[20] I have compiled these background facts, which are not controversial, as an overview of events. There were many other events that transpired in the aftermath of Cindy’s delivery that are important, but the parties do not agree on their significance, and they are the subject of disparate expert opinions, so I will address them later in these Reasons.

[21] I pause to note that an agreed statement of facts, drafted by counsel, would have been of assistance to the Court. As well, it would have been helpful to have a chronology of important events and the timing and a list of the medical terms and their definitions. In my view, every medical negligence case that proceeds to trial ought to have these documents for the benefit of the trial judge.

[22] Over the course of the trial, I drafted “lay” definitions of the important medical terms and made a chronology of what I deemed to be important events during the course of Cindy’s surgery. I have attached the medical terms as an appendix to these Reasons. The medical issues in this case are complex. At trial the experts testified using terminology well-known in the area of obstetrics. The experts were very helpful in providing explanations to the Court and I include the important terms to assist the reader. These are not medical dictionary definitions of medical terms; rather, they are intended to assist the reader.

Did the obstetrical team, Dr. Farine, Dr. Yinon and Dr. Kandasamy meet the standard of care?

The Law

[23] The law on the standard of care for professional negligence is well settled and there was little disagreement between counsel concerning the law on standard of care. Every medical practitioner must exercise a reasonable degree of care, skill and knowledge which could reasonably be expected of a careful, prudent practitioner of the same experience and training: Crits v Sylvester et al., 1956 CanLII 34 (ON CA), [1956] O.R. 132 (C.A.).

[24] A specialist will be held to a higher degree of skill than a general practitioner, and the physician’s conduct will be assessed against the conduct of other similarly situated specialists, not the best and not the worst, but an average physician in that particular specialty: ter Neuzen v. Korn, 1993 CanLII 2881 (BC CA), 81 B.C.L.R. (2d) 39 (C.A.), aff’d 1995 CanLII 72 (SCC), [1995] S.C.J. No. 79.

[25] The standard of reasonableness is not a standard of excellence or a standard of perfection: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963,452 D.L.R.(4th) 555, rev’d Armstrong v. Ward, 2021 SCC 1

[26] A resident or a fellow is held to the same standard of care as a similarly situated resident or fellow with the same level of experience in the same area of specialty. A first-year resident is not held to the same standard of care as a resident in the final year of their studies. A resident or fellow is not held to the same standard of care as a fully qualified specialist. Granger (Litigation Guardian of) v. Ottawa General Hospital (1996), 7 O.T.C. 81 (Gen. Div.).

[27] Physicians must exercise their judgment in the provision of care and treatment to their patient. If that judgment was exercised reasonably at the time, in light of the circumstances that existed at the time and the facts that were known, an error in judgment does not equate with negligence, as long as it was an “honest and intelligent exercise of judgment”: Wilson v Swanson 1956 CanLII 1 (SCC), [1956] S.C.R. 804. Negligence on the other hand will be found when a doctor embarks on a course of action that would not have been made by any similarly situated, reasonably competent physician in similar circumstances.

[28] In Samms v. Moolla, 2019 ONCA 220, at para. 73, the Court of Appeal noted, “The error of judgment principle is rooted in the reality that a great deal of medical treatment depends on the exercise of medical judgment. Although that judgment may be wrong, the fact that it is wrong does not mean that it is necessarily negligent. What the law requires is that reasonable care be taken in the exercise of medical judgment.”

[29] An unfortunate or unanticipated outcome does not constitute proof of negligence. The question to be determined is whether the act or omission is acceptable conduct for a reasonably prudent and diligent physician in the same circumstances: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 at para.53.

[30] An error in judgment made at the time is to be distinguished from a finding of negligence. In Dean v. York County Hospital et al., [1979] O.J. No. 348 (High Ct.), the Court succinctly noted, “Diagnosis is, above all an exercise of the physician’s judgment based on his training, experience and, perhaps, intuition. It is trite to say that a physician is not liability for injuries flowing from errors of judgment (as opposed to actual negligence). The real difficulty lies in determining whether injurious behaviour by a physician was negligence or merely an error in judgment and it is in the facts in each case which will determine the answer to this crucial question.”

[31] It is important to note that the actions of a physician are assessed in light of the medical knowledge and the facts and background history that they ought to have known at the time of the alleged negligence. The conduct of a doctor must not be assessed with the benefit of hindsight, knowing the outcome. The Supreme Court of Canada stated in Lapointe v. Hopital Le Gardeur 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351:

28. …courts 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 kept 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.

[32] The Plaintiffs submit that both the obstetrical team and the anaesthesiology team fell below the respective standards of care and were negligent. Specifically, they state:

• There was a lack of communication between the anaesthesiology team and the surgical team about Cindy’s hemodynamic status, specifically her being in shock;

• The Defendant physicians failed to administer a blood transfusion to Cindy following her bleed and resultant hemodynamic instability;

• The anaesthesiologists stopped the supportive medications, the vasopressor and inotropic support, and mechanical ventilation, when she was clearly in shock;

• The anaesthesiologists failed to initiate closer and more invasive monitoring which would have allowed superior blood pressure assessment and also a means to administer the vasopressor/inotropic medications to Cindy;

• Dr. Fleming left the operating room when Cindy was in a state of shock and he did not know why; he failed to follow up on important laboratory test results;

• Dr. Fleming and Dr. Simitciu breached the standard of care by failing to record Cindy’s vital signs in the Anaesthesiology Record after 2320h.

The actions of the obstetrical team—the expert opinions

[33] Dr. Lightheart, an obstetrician, testified at trial on behalf of the Plaintiffs and provided expert opinions on the issues of standard of care of the obstetrical team as well as on causation. Dr. Lightheart has worked as an obstetrician/gynecologist since 1989 and spent 22 years at the Hamilton Health Sciences Centre before moving to Owen Sound where she continues to work full time. She is not a specialist in maternal fetal medicine although she has dealt with high-risk pregnancies throughout her career. She was knowledgeable, impartial and fair in her testimony. She answered questions directly and did not tailor her evidence to assist the party that retained her.

[34] The defence called Dr. Barrett who has been practising as an obstetrician/gynecologist since 1995. He worked for most of his career at Women’s College Hospital as the head of the maternal fetal medicine department and more recently, he moved to McMaster University and St. Joseph’s Hospital in Hamilton. Dr. Barrett has dealt with high-risk pregnancies throughout his career and has been involved in extensive teaching and lecturing around the world. I found Dr. Barrett to be an impressive witness, with a great deal of knowledge about the issues in this lawsuit and he was not an advocate.

[35] Both Dr. Lightheart and Dr. Barrett fulfilled their expert duties and their evidence was of great assistance to the Court on the complex medical issues in this case. I make this comment because, too often, experts who testify at trials retreat from the role of an expert and descend into the arena of the advocates.

Analysis concerning Dr. Farine

[36] Dr. Lightheart was critical of the obstetrical team for 4 reasons: the failure of communication among the physicians who were in the operating room providing care to Cindy; the wait for urology; the delay in providing blood to Cindy; and the failure to recognize in a timely fashion that Cindy was in hemorrhagic shock.

Failure to communicate

[37] Dr. Farine was the staff doctor and the MRP for Cindy. I found him to be straightforward in his evidence and he responded to questions in cross examination in a fair manner. His evidence was both credible and reliable, in my view.

[38] Dr. Farine confirmed that he expected the anaesthesiology team to convey to the surgeon the relevant clinical information. He was not aware that Cindy’s blood pressure had dropped during the surgery and that she became tachycardic or that Dr. Fleming had ordered phenylephrine and epinephrine be administered to address her low blood pressure. He also confirmed that he was not advised that when she was converted to general anaesthesiology her blood pressure dropped significantly, to 60/30, and that was something he would have wanted to be apprised of. Similarly, he would want to be advised if his patient was in shock.

[39] Dr. Yinon and Dr. Kandasamy were similarly unaware of Cindy’s instability during the C-section or the fact that she was being administered vasopressors. They testified that Dr. Fleming did not inform them at the time of Cindy’s instability, though Dr. Yinon stated it would not have affected his management of her.

[40] Dr. Fleming’s evidence about what he said to the surgeons was vague and less than satisfactory. For example, he was asked on numerous occasions if he informed the surgical team that he was administering vasopressors and fluids and his response was that the surgeons “would have known”. He answered numerous questions about what information he imparted to the surgeons by stating, “I would have told them….” He also said that the machines that measured vital signs were available for the surgeons to view, so they could inform themselves in that way. He testified that he did not want to bother the surgeons while they were operating, although he agreed that information about patient instability was important.

[41] When confronted with the testimony of the obstetricians that they had not been told of Cindy’s instability, Dr. Fleming had no explanation to offer, nor any specific recollection of telling them the information. I find that neither Dr. Fleming nor Dr. Simitciu advised the surgical team of Cindy’s hemodynamic instability or the fact that they were administering vasopressors to improve her blood pressure at the time of the surgery.

[42] Dr. Lightheart was critical of the physicians generally because of what she described as a “failure of communication”. While I agree that during a surgery, there are doctors and nurses all working together providing treatment to a patient, an expert must identify actions or conduct that was negligent for each specific Defendant. For example, a nurse might fail to follow a doctor’s order concerning administration of medication, or a doctor might use a surgical technique that was not appropriate in the circumstances. Although the treatment providers are members of a team, they undertake different things, they play different roles, and their separate actions may be criticized by an expert as falling below the applicable standard of care.

[43] Dr. Lightheart stated that Dr. Farine failed to meet the standard of care because there was a “failure of communication in the operating room”. It is unclear to me how Dr. Farine is responsible for the fact that he was not apprised of what was transpiring with the vital signs of his patient during surgery.

[44] Dr. Lightheart’s comment is a broad-brush statement, lacking in specificity. An expert in a professional negligence case is required to identify several things: the applicable standard of care; the breach of the standard; and what a prudent practitioner would have done in the circumstances. Dr. Lightheart did not specify what Dr. Farine should have done in the circumstances to have ensured that there was better communication in the operating room. When Dr. Lightheart was asked in cross-examination what Dr. Farine should have done at the time, she did not identify a specific thing.

[45] The role of an expert in a professional negligence case is critical. This is because the Court must rely on the expert to identify the applicable standard of care for a professional in the circumstances and to advise the Court what the breach was and how the Defendant failed to meet the standard of care. A Defendant must know what it is the Plaintiff alleges he or she did wrong; there cannot be any mystery about this, and the law is clear that the case against a Defendant must be articulated and understood: Peller v. Ogilvie-Harris, 2018 ONSC 725.

[46] Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires the written report of an expert to state the opinion, the basis for the opinion, and the foundational documents relied upon in arriving at the opinion. This Rule exists to provide clarity and an understanding of the expert’s opinion. Making general statements such as “There should have been better communication between the doctors” or “The surgeon should have known his patient was unstable” do not properly articulate allegations of negligence against a specific physician.

[47] While I accept an expert reviewing a medical chart may quite properly arrive at the conclusion that a situation fell below the applicable standard of care in his or her opinion, the expert must be able to do more than make a broad statement that things should have been better or that things were not up to expectations. No one would disagree that there ought to be communication between the various treatment providers in a surgical situation.

[48] The Court expects the expert to identify the proper standard of care for a physician. Once that has been identified, the expert must be able to specify what steps a defendant ought to have taken in order to have met the applicable standard of care. Dr. Lightheart failed to do that in her evidence and at the close of her testimony, and I was left wondering what Dr. Farine ought to have done differently to have met the standard of care.

[49] In the written submissions of the Plaintiffs, it is asserted that either Dr. Fleming did not communicate the necessary information about Cindy’s clinical instability to the surgeons “or the surgical team did not hear/understand what he was attempting to communicate. This failure undoubtedly constitutes a breach of the standard of care.” There is no confusion in the evidence about what was said or not said by Dr. Fleming to the surgical team. Dr. Fleming acknowledged that he did not advise the surgeons of Cindy’s instability or the fact that he was administering vasopressors in an effort to maintain her blood pressure. There is no evidence that the obstetricians somehow didn’t hear what was said to them or didn’t understand it. The evidence is uncontradicted that they were not told; the obstetrical team cannot be found to have breached the standard of care by “failing to ensure accurate communication took place between the anaesthesiology team and the surgical team about Cindy’s clinical shock condition.” (Plaintiffs’s written submissions, at para 170).

[50] In his evidence, Dr. Farine agreed that there was information that Dr. Fleming did not provide him that he would have liked to have known. I do not find that this shortcoming is the fault of Dr. Farine or is evidence that it was incumbent upon him at the time to do something further. It is not evidence that he somehow fell below the standard of care.

[51] Doctors of different specialties work together to provide care to patients. Specialists are trained on what information should be shared with other specialists who are treating the patient. It is, in my view, impossible to conceive of what Dr. Farine could have and should have done in the operating room to improve communication, which constitutes negligence according to Dr. Lightheart. I do not find that Dr. Farine breached the standard of care of an obstetrician in the circumstances because of the nature of the communication in the OR.

Failure to recognize Cindy was in hemorrhagic shock and to administer blood

[52] Dr. Lightheart stated Dr. Farine was negligent because he failed to appreciate the severity of Cindy’s evolving hemodynamic instability and administer a blood transfusion. Dr. Lightheart testified that as the MRP, Dr. Farine “should have known”. I do not accept Dr. Lightheart’s opinion on this point and it appears to be an opinion that was formed with the benefit of hindsight.

[53] Dr. Farine was not present in the OR for the entire surgery; he was called away to another delivery and Dr. Yinon was providing care to Cindy. None of the experts stated that it was inappropriate for Dr. Farine to delegate Cindy’s care to Dr. Yinon, who was a senior fellow near completion of his second fellowship, assisted by Dr. Kandasamy, the resident.

[54] Dr. Barrett stated that it was entirely appropriate for Dr. Farine to have assigned Dr. Yinon the Caesarian section for Cindy. Mt. Sinai is a teaching hospital and a procedure will be delegated to the appropriate level of experience, a resident or a fellow. Dr. Farine was the staff doctor on call that evening and he had to attend to other labour and deliveries; no-one disputes this.

[55] The surgery commenced at 2035h and the baby was delivered at 2047h. After the placenta was delivered at 2049h, Drs. Yinon and Kandasamy noticed bleeding in the area of the site of the left uterine artery. During the delivery, there was an extension of the uterine incision into the left uterine artery and there was active bleeding at the sight. That means that the original incision was made longer during the delivery, due to the position of the baby. Dr. Farine was summoned to the operating room when the bleeding was noted.

[56] Dr. Barrett agreed with Dr. Lightheart that extensions of incisions are common; in this case, it was identified and sutured by Dr. Yinon to stop the bleeding. It was appropriate for Dr. Yinon to call Dr. Farine to return to the OR, since he was the staff doctor and the bleed was a complication. The bleed was a “pumper” which was easy to see because the extension went into the uterine artery. It was clamped to stop the blood loss and then sutured.

[57] Drs. Yinon and Kandasamy placed the uterus on Cindy’s abdomen, also known as exteriorizing the uterus. Both doctors testified this was standard procedure and it permitted them to have a better view of the area of the bleed. They placed a clamp on the artery to stop the bleeding temporarily. Dr. Yinon placed a number of figure-of-eight sutures in the uterine artery. Dr. Farine’s presence in the operating room was noted at 2122h, approximately 33 minutes after the uterine bleeding was noted.

[58] At trial, both doctors testified they believed they stopped the bleeding, which is known as hemostasis. Dr. Yinon told Dr. Farine that Cindy had bled “a lot”. Dr. Farine inspected the site and observed there was still bleeding which required additional suturing; this was done by Drs. Yinon and Farine. Dr. Farine testified that the bleeding was stopped by 2130h.

[59] It is clear that Dr. Farine was concerned about Cindy’s presentation when he returned to the OR. He observed the area of the bleed and assisted with the placement of additional sutures; in my view, that demonstrated Dr. Farine’s expertise. He was able to see that Dr. Yinon had not stopped all of the bleeding from the uterine artery; his experience and additional skill and to ensure the bleed was taken care of is presumably why Dr. Yinon called Dr. Farine back to the OR.

[60] Upon being advised that Cindy had bled “a lot” during the surgery and noting she looked pale, Dr. Farine was appropriately concerned about the issue of blood loss. There was a discussion between the surgical team and the anaesthesiology team and Dr. Farine asked Dr. Fleming about the need for a transfusion. There was a discussion about the amount of blood Cindy had lost during the surgery; and the doctors estimated Cindy’s blood loss. Dr. Yinon estimated the blood loss at 1200 cc’s while Dr. Simitciu thought it was approximately 1000 cc’s. Dr. Fleming put the blood loss in the range of 1000-1600 cc’s. Dr. Fleming did not feel a transfusion was indicated and he planned to take a blood sample and send it to the lab for analysis. This was done and at 2227h, an arterial blood gas sample was also taken for analysis.

[61] Dr. Barrett testified that Dr. Farine met the applicable standard of care as the MRP for Cindy. On the issue of the possible need for a blood transfusion, Dr. Barrett stated that Dr. Farine was alive to the issue of blood loss and that is why he raised it with Dr. Fleming. There was a discussion about the amount of blood that Cindy had lost as measured:

Q. “Dr. Barrett, based on your review of this case, was there an obstetrical estimate of total blood loss for Ms. Bendah's C-section?

A. Yes, there was.

Q. And what was that estimate?

A. So I am just going to look at my report because I know there was some different estimates and I want to make sure that I get this right. So yes, so Dr. Yinon said it was 1200 ml's, and Dr. Simitciu said it was 1,000 ml's, and Dr. Fleming said it was between 1,000 and 1,600 ml's. 41

Q. And so which of those is the obstetrical estimate of total blood loss?

A. The obstetrical is Dr. Yinon's, the surgeon. He would be the obstetrical. I think the important thing in this case is that there was a discussion and a communication amongst the team as to how much blood loss there was to see whether it required a transfusion or not.

Q. Did you understand Dr. Yinon's estimate or the obstetrical estimate of 1200 millilitres to be an objective or a subjective blood loss estimate?

A. All blood loss is -- I mean, it is a combination of objective and subjective, right. It is an impression on how much you lose, plus an inspection of the sponges, which is a bit more objective. So it is a combination of both.

Q. And what is a usual amount of bleeding for a caesarian section?

A. So more than 1,000 ml's is regarded as a postpartum hemorrhage or excessive or abnormal. I would say the average for a caesarian section is in the order of 7 to 800 ml's.

THE COURT: 7 to 800?

THE WITNESS: Yes.

THE COURT: Yes.

BY MS. GRAHAM:

Q. And so how does the obstetrical estimate of total blood loss of 1200 compare to the usual amount, as you have just described it?

A. Well, it is more. I mean, it is clear there was more bleeding, which would be expected with the fact with the complication. There was bleeding, so there is the normal amount of bleeding, plus the extra bleeding that would have associated because of the extension. So it is more than the -- than average.

Q. And on your review, Dr. Barrett, did any of the obstetricians involved in this caesarian section consider a blood loss transfusion for Ms. Bendah?

A. Yes, so from my understanding of the records, you know, Dr. Farine, when he came in, naturally - he wasn't there - so if I was the staff, I would raise the possibility of how much blood was there? Do we need to give blood? So he did raise that, and Dr. Yinon, I know who was there the whole time, didn't feel there was a need to. And so thereafter my understanding is what followed is a discussion between the team as to how much blood there was, and the decision, Well, let's do a blood count. Let's do a hemoglobin, which is an objective -- a more objective measure that we use to decide whether people need to get a transfusion or not. So that -- in my opinion, that is appropriate to do.

Q. What is appropriate to do?

A. To have a discussion from everybody there, that we are a team, and so in this kind of decision, everybody has got a different view of the case, so it is appropriate that there is this discussion and a review in a case like this as to how much blood loss there was and whether a transfusion should be given.

Q. And you have referred a number of times in your answers, Dr. Barrett, to "a team". Who is it that you are referring to in this context?

A. It is the anesthesia team, Dr. Fleming, Dr. Simitciu, Dr. Yinon, and now Dr. Farine is inside, and to a lesser extent Dr. Kandasamy, once -- she is lower down on the team, but she is present too.

Q. And in the circumstances, in your opinion, Dr. Barrett, was it appropriate for Dr. Farine to raise that possibility as you have described it?

A. Yeah, whenever we have blood loss that is over and above average, that is a prudent thought to raise, does she need blood, and I think that they made an appropriate decision all together to, while probably not obviously, let's do a hemoglobin.”

[62] Dr. Barrett stated that the average amount of bleeding for a woman with a Caesarian section is in the range of 1000 cc’s. While the estimates of Cindy’s blood loss are more than average, she had experienced an extension which resulted in additional blood loss from the average. Dr. Farine inquired of Dr. Fleming about the need for a transfusion; that was reasonable in the circumstances and demonstrates that he was alive to the issue of blood loss.

[63] Dr. Fleming did not agree that Cindy should be transfused and elected to have some blood work done and to ensure blood was ready for transfusion if necessary. Dr. Fleming did not feel a transfusion was required, and his plan was to take a blood sample. That was done and at 2227h an arterial blood gas sample was also taken for analysis. Blood was taken to be sent to the lab and the hemoglobin result was received at 2246h and it was 90. Dr. Barrett testified this result was compatible with the blood estimates and he would not have considered a transfusion with that result.

[64] Dr. Barrett testified that the decision to have blood work done was appropriate and I agree. There was a discussion about the issue of Cindy’s blood loss and there was an exercise of clinical judgment that was reasonable, in my opinion. I do not accept Dr. Lightheart’s opinion that Dr. Farine did not realize that Cindy was in hemorrhagic shock and required a transfusion. Rather, I prefer the expert opinion of Dr. Barrett because it is based in the evidence that Dr. Farine had at the time and confirms that Dr. Farine considered the issue of blood loss and he made a reasonable decision in the circumstances.

[65] Dr. Barrett stated that Dr. Farine’s decision not to press the issue of a transfusion was appropriate at the time. As he put it, no obstetrician with a patient with a hemoglobin reading of 99 and a blood loss of between 1000 and 1500 cc’s would even think of doing a blood transfusion, which has its own set of risks. All of the experts agreed that a blood transfusion is not without risk. As Dr. Barrett commented, “a blood transfusion is not given because it might be a good idea.” It is not a benign procedure, because it affects a person’s immune system for life. Dr. Jaeger and Dr. Clark agreed with this statement. I do not accept that a transfusion was indicated and if in doubt, it ought to have been done. In Cindy’s case, the exercise of clinical judgment at the time was reasonable and I do not find that a transfusion was warranted.

[66] Looking at the evidence as a whole, I do not find Dr. Farine breached the standard of care by not insisting that Cindy have a blood transfusion. The exercise of a doctor’s clinical judgment must be assessed at the time; not with the benefit of hindsight, knowing what happened to the patient later. Dr. Farine met the standard of care on this issue.

Waiting for urology to do the cystoscopy

[67] Dr. Lightheart was critical of Dr. Farine for waiting for a lengthy period of time for urology to attend and do the cystoscopy, given Cindy’s status. She testified she was unstable Dr. Barrett testified that it is the usual procedure to ensure that there has been no damage to other structures when there is an extension because surgeons want to avoid having to perform a reparative surgery after the patient has been closed up from the original surgery. I do not accept Dr. Lightheart’s opinion on this point, and I prefer Dr. Barrett’s view.

[68] Dr. Farine called the urology department at 2142h to attend and assess to determine if any damage had occurred to Cindy’s ureter. Given the bleed encountered in the uterine artery, it was reasonable for Dr. Farine to ensure there had been no damage to the ureter, and in my view, he cannot be criticized for involving urology. Furthermore, when urology did not come quickly, Dr. Farine left the OR and called himself to try and get the urology team to come on a more urgent basis. Urology arrived at 2222h.

[69] Indeed, in cross-examination, Dr. Lightheart acknowledged that it +was prudent for Dr. Farine to request a consultation with urology. Neither of the experts suggested he ought to have abandoned his plan to have an assessment by urology. Rather, all of the experts agreed that it was prudent to have an assessment to ensure there was no unseen damage to the ureter.

[70] For the reasons I have detailed, I do not find that Dr. Farine failed to meet the standard of care. Rather, in the circumstances, the actions of Dr. Farine were those of a prudent obstetrician faced with the circumstances in Cindy’s case. He met the standard of care and was not negligent.

Analysis Dr. Yinon and Dr. Kandasamy

[71] Dr. Yinon performed the Caesarian section and Dr. Simitciu, the resident, assisted him. The expert for the Plaintiffs, Dr. Lightheart, was not critical of either of these Defendants in her testimony. She agreed that there are different roles for a staff doctor, a fellow and a resident and stated that different standards of care apply to each. Dr. Farine, as the staff obstetrician and the MRP for Cindy, was responsible for all decisions that were made.

[72] There is no suggestion that the Caesarian section was carried out in a negligent fashion. None of the experts expressed the view that the fact a uterine extension occurred was evidence of negligence. Dr. Lightheart described an extension as “relatively common” especially when the head is presenting as Yahov’s was. Similarly, the experts agreed that the fact that the extension went into the left uterine artery causing it to tear and bleed was not evidence of negligence.

[73] Dr. Lightheart did not articulate any actions of Dr. Yinon or Dr. Simitciu that she opined fell below the applicable standards of care for a fellow and for a resident. To the contrary, she agreed that Dr. Yinon observed the bleeding and addressed the situation appropriately, using a number of sutures to achieve hemostasis. She also stated that it was appropriate for Dr. Yinon to call Dr. Farine when he noticed the bleeding. After the uterus was closed, some additional bleeding was seen and Dr. Farine and Dr. Yinon did some further sutures, which Dr. Lightheart stated was entirely appropriate.

[74] After the cystoscopy, the surgeons again checked for bleeding before placing the uterus back in the abdomen and none was observed. Dr. Lightheart testified that was exactly what should have been done, to ensure there was no ongoing bleeding before the skin was closed.

[75] In this case, Dr. Lightheart has not articulated any actions of Dr. Yinon or Dr. Kandasamy that she finds negligent. She has included in her opinion that the communication between the doctors in the OR fell below the appropriate standard of care. In the same way as I have noted Dr. Farine cannot be held responsible for a “failure of communication in the OR”, neither can Dr. Yinon nor Dr. Kandasamy. There is no evidence that Dr. Yinon or Dr. Kandasamy fell below the applicable standard of care in their provision of care to Cindy in the OR during the surgery.

[76] I do not find that Dr. Yinon or Dr. Kandasamy was negligent. Given the absence of an opinion of negligence from either Dr. Lightheart or Dr. Dugas concerning Dr. Yinon or Dr. Kandasamy, the claims against these Defendants ought to have been dismissed prior to trial, in my view.

Did the anaesthesiologists Dr. Fleming and Dr. Simitciu meet the standard of care?

[77] Dr. Fleming was the staff anaesthesiologist and Dr. Simitciu was the second-year resident assisting during the delivery. The Plaintiffs called Dr. Geoffrey Dugas as an expert witness, and he was qualified to offer his opinion on the issue of standard of care of the anaesthesiologists and also on the issue of causation. Dr. Dugas is an anaesthesiologist working at the Brampton Civil Hospital, where he has worked since 2009 and he was chief of the department from 2012 to 2017. The majority of his on-call schedule involves perhaps 70% obstetrical work; he estimated that he works on 100-130 Caesarian section operations per year. I found Dr. Dugas to be a knowledgeable, credible witness who fulfilled the role of a Rule 53 expert.

[78] Dr. Jaeger testified as an expert on behalf of the Defendants. She is an anaesthesiologist practising at the Kingston Health Sciences Centre and she was qualified to offer an opinion to the Court on both standard of care and on causation. Like Dr. Dugas, I found Dr. Jaeger was knowledgeable and attempted to assist the Court with her evidence. She also fulfilled the role of an expert witness.

[79] Dr. Dugas described Cindy’s case as “very complex and challenging” even for an experienced physician. In his testimony, he was not critical of Dr. Simitciu, the resident, and did not state that she breached the standard of care. He did state that the failure to chart in the anaesthetic record was unacceptable and constituted a breach of the standard of care. It is difficult to reconcile those two statements, since Dr. Simitciu was the one responsible for filling out the chart. Ultimately, as the staff physician, Dr. Fleming needed to ensure the chart was completed properly.

[80] As the staff doctor, Dr. Fleming was responsible for the anaesthesiology decisions on the management of Cindy, and Dr. Dugas testified that Dr. Fleming failed to meet the requisite standard of care in a number of areas. He described the breaches of the standard of care of Dr. Fleming as follows:

1. the failure to advise the surgical team of Cindy’s hemodynamic instability and the fact that pharmacologic support was necessary prior to the induction of a general anaesthesiology;

2. the failure to ensure appropriate monitoring was done, including an arterial line and a central line and continuous pharmacologic support;

3. undertaking extubation and administering reversal drugs at 2330h instead of transferring Cindy to the ICU;

4. failing to initiate targeted treatment for Cindy’s hypovolemic shock prior to her cardiac arrest;

5. leaving the OR when Cindy was unstable, leaving Dr. Simitciu, a second-year resident, in charge of managing her treatment; and

6. failing to document and complete the anaesthesiology record after 2320h.

Failure to communicate and advise the surgical team of Cindy’s status

[81] Dr. Dugas testified that it is essential to communicate constantly with the surgical team during a Caesarian section. An anaesthesiologist cannot see the surgical field during the operation, so any hemodynamic change must be told to the surgical team. In Cindy’s case, she was developing hemodynamic instability prior to the conversion to general anaesthesiology and Dr. Fleming found it necessary to administer phenylephrine in order to maintain her blood pressure. In addition, the medication only improved her blood pressure for a short period of time. Dr. Dugas testified that this information should have been communicated to the surgeons and the fact that it was not constitutes a breach of the standard of care of an anaesthesiologist in these circumstances.

[82] It is not disputed the surgeons did not know about Cindy’s hemodynamic instability. Dr. Farine testified that he was not advised by the anaesthesiology team that her blood pressure had dropped, and that phenylephrine and ephedrine were administered in an effort to increase her blood pressure and ensure perfusion. He was not told that Cindy’s blood pressure was 60/30 despite the vasopressor medications or that she was tachycardic. Dr. Farine testified that he relied on the information from Dr. Fleming and that if the patient was unstable, in shock or acidotic, he would have wanted to be apprised of that information. Dr. Fleming did not inform him that he had deemed her too unstable for extubation.

[83] In his evidence, Dr. Yinon confirmed that he was not advised that Cindy had experienced profound hypotension prior to the call to urology at 2147h, or that she was in shock at the time the general anaesthesiology was administered. Dr. Kandasamy confirmed the evidence of Dr. Yinon.

[84] When Dr. Fleming was asked about whether he told the surgeons about Cindy’s low blood pressure and the administration of vasopressors prior to the administration of a general anaesthesiology, his evidence was less than satisfactory. Dr. Fleming’s answers to questions were often vague and he tended to state what he would have done, leaving me to wonder whether he had any actual recollection of the events involving Cindy or was simply testifying about what he thought he might have done. Given the unexpected and shocking outcome of Cindy’s delivery, it is difficult to comprehend how Dr. Fleming does not have a reliable recollection of the events of that evening.

[85] For example, when Dr. Fleming was asked (page 77 of his transcript) whether he informed the obstetrical team about Cindy’s profound hypotensive episode, he responded, “It would be our expectation….” When I directed him to answer the specific question, he replied, “We would have been asking over the drapes…” When Dr. Fleming was asked in chief whether he told the surgical team about the period of profound hypotension, he answered, “I would say I did. I have trouble recalling specifically who I would have told.”

[86] In cross-examination he was asked whether he agreed it was important that the anaesthesia team communicate with the surgical team to keep them apprised of the patient’s status. Dr. Fleming agreed communication was important to patient care but when asked directly if he told the surgeons that Cindy was unstable and he was trying to control it through medication, Dr. Fleming on several occasions failed to answer the question. Instead, he offered broad statements about the job of an anaesthesiologist and his desire not to distract the surgeons from their work.

[87] After 2115h, the records indicate that Cindy’s blood pressure started to drop. She was administered phenylephrine to maintain her blood pressure at an acceptable level, but the surgeons were not advised of this. Notwithstanding what Dr. Dugas described as large doses of phenylephrine, after 2115h, Cindy continued to experience hemodynamic instability and her heart rate rose and she was tachycardic.

[88] Specifically, when Dr. Fleming determined that Cindy ought to be administered general anaesthesiology at 2155h given how uncomfortable she was and the length of time it was taking for the urology consultation to occur, I accept Dr. Dugas’s opinion that the standard of care of a prudent anaesthesiologist in those circumstances required that the surgeons would have been told of the hemodynamic instability and the large amounts of vasopressors that were being administered in an effort to maintain the patient’s blood pressure. Dr. Jaeger in her evidence did not disagree that when a patient is unstable and in shock, the surgical team should be told, particularly if the reasons for the status were not clear.

[89] In addition, following the conversion to general anaesthesiology, Cindy had a profound hypotensive response, and the surgical team should have been advised of this and they were not. Dr. Farine, Dr. Yinon and Dr. Kandasamy were trying to deal with the situation involving the injury to the uterine artery; they were trying to provide the best care to their patient, and they should have been provided with the information about the difficulties maintaining her blood pressure despite the administration of appropriate medication, and her tachycardia. They needed to know the entire clinical picture in order to make the best decisions for their patient. The failure to do so constitutes a breach of the standard of care by Dr. Fleming.

[90] When the surgery and the cystoscopy was completed, Cindy remained unstable, and Dr. Dugas testified that Dr. Fleming should have been communicated the information to the surgeons and he failed to do so. All 3 of the surgeons testified that they were not aware of Cindy’s instability or of the fact that Dr. Fleming was having difficulty maintaining her blood pressure even with the use of vasopressors. I accept Dr. Dugas’s opinion that this was important clinical information that ought to have been imparted to the surgeons by Dr. Fleming and it was not. This falls below the acceptable standard of care of an anaesthesiologist in the circumstances.

[91] The failure of Dr. Fleming to inform the surgical team of the deterioration in Cindy’s blood pressure, her instability and the fact that she was in shock falls below the standard of care of an anaesthesiologist in the situation in which Dr. Fleming found himself. He was negligent.

Failure to monitor appropriately and administering general anaesthesiology at 2150

[92] Cindy had been in labour since approximately 1000h that morning. Her Caesarian section had started at 2035h and the baby was delivered at 2047h. By this time, Cindy was nauseous and vomiting and was uncomfortable. It was uncertain when urology would attend. Dr. Fleming knew her blood pressure was unstable, and her heart rate was increased and there was a concern about loss of blood during the surgery.

[93] The experts concurred that with the administration of a general anaesthesiology, a patient’s blood pressure usually dips. Dr. Dugas was critical of Dr. Fleming for failing to monitor Cindy more closely prior to switching to general anaesthesiology; however, he testified the decision to convert Cindy to a general anaesthetic was appropriate. Dr. Dugas testified that Dr. Fleming was negligent because he failed to insert a central line, given the amount of vasopressors and epinephrine that Cindy was being given and her lack of a good response. Dr. Fleming should have considered that given that she had a bleed during surgery with continued hemodynamic instability, an arterial line or central line should have been done.

[94] In his evidence, Dr. Fleming testified that central lines are rarely used in Caesarean sections. For Cindy, there was no indication to place a central line because perfusion of her kidneys was adequate, and insertion of a central line is “a very aggressive procedure” that was not warranted in the circumstances. After the conversion to a general anaesthesiology around 2205h, Cindy’s blood pressure dropped, and Dr. Fleming testified he was concentrating on addressing that situation.

[95] With respect to an arterial line, Dr. Fleming testified that there was no indication for it before she was converted to general anaesthesiology and her hemodynamic instability increased significantly. Furthermore, Cindy was being given vasopressors and other fluids through an intravenous line and her blood pressure was being continuously taken through a blood pressure cuff so all of these treatments were being provided to Cindy.

[96] Dr. Dugas also critical of Dr. Fleming for not placing an arterial line before the induction of general anaesthesiology because she was hemodynamically unstable. Dr. Dugas stated that use of these lines permits the anaesthesiologist to administer vasopressors and inotropes and also permits the taking of blood gas samples and CBC samples and allows continuous blood pressure monitoring. Dr. Dugas also stated that a central line permits the surgeons to determine the volume status in a patient and if necessary, to deliver vasopressor medication through the line for a longer period of time.

[97] Dr. Jaeger disagreed that the standard of care required the insertion of these lines and she testified that Cindy had good perfusion of her kidneys and her urine output was very good with a modest amount of blood loss, so Dr. Fleming’s decision to transfer to a general anaesthesiology was a reasonable one. Dr. Jaeger did not believe there was a need to monitor more closely through the use of an arterial line or a central line and she stated that the failure to employ these lines did not constitute a breach of the standard of care.

[98] It is necessary that doctors make clinical judgments based on the facts they are faced with at the time of provision of treatment. I accept Dr. Fleming’s statement that, in his experience, central lines are rarely used in C-sections and it is highly unusual to insert one during the procedure; they are usually done prior to the surgery, based on known risk factors. From the description provided about how a central line is inserted into a patient, I also accept Dr. Fleming’s description that it is “an aggressive procedure” (Dr Fleming transcript May 23). There was no indication in Cindy’s case for the use of a central line prior to her C-section.

[99] Dr. Fleming was aware of Cindy’s condition, specifically her hemodynamic instability. He exercised his clinical judgment in a reasonable fashion to address her needs. She was receiving vasopressor medication and fluids intravenously, and her blood pressure was being monitored in the standard fashion. There was no evidence that the provision of the medications to Cindy was somehow less than optimal, nor was there any suggestion that the blood pressure monitor was not performing satisfactorily.

[100] After the dip in her blood pressure following the conversion to general anaesthesiology, there was a recovery and the urologists were performing the cystoscopy. I do not find it would have been reasonable to insert a line at that time, given the wait for the urology team to attend and the time required to put in the line. I prefer Dr. Jaeger’s opinion on this point. Cindy was being monitored appropriately, blood loss estimates were done and her urine output was good at this time. I do not find that the standard of care required the insertion of these lines or that Dr. Fleming was negligent for failing to insert them.

Failure to initiate targeted treatment (transfuse blood products) for hypovolemic shock

[101] The Plaintiffs submit that Cindy had a severe hemorrhage, went into shock and needed a blood transfusion. Dr. Dugas was critical of Dr. Fleming for failing to transfuse blood in a timely manner to Cindy and offered the opinion that his failure to do so constituted a breach of the standard of care. The surgeons were concerned about her loss of blood and raised the issue of the need for a transfusion with Dr. Fleming, who was dismissive of their concerns.

[102] After the bleed was noted and repaired, Cindy experienced hypotension and did not respond to the administration of vasopressor and inotropic medications. As time went on, Cindy became acidotic and she was in shock. Dr. Dugas was of the opinion Cindy was in hypovolemic shock, there was nothing else to explain her condition. While Dr. Fleming was alive to the issue of blood loss and he ordered blood work, Dr. Dugas stated his opinion that it was not acceptable for him to delay the administration of blood as it was essential that her depleted blood volume be restored. Dr. Dugas testified that, in his opinion, the transfusion ought to have taken place at 2250h.

[103] Dr. Jaeger disagreed with Dr. Dugas. In her opinion, the uterine bleed was controlled and there was no ongoing bleeding. When Dr. Farine questioned the need for a transfusion, the anaesthesiology team did an assessment of the amount of blood Cindy had lost during the C-section and approximated it at 1000 cc’s. Dr. Jaeger stated that a transfusion is not needed for that amount of blood loss and between the time 2130h and 2145h, there was nothing concerning about her hemodynamics. Her urine output was good and she had very good perfusion to her kidneys.

[104] At 2200h, Dr. Fleming ordered 4 units of packed red blood cells to be cross-matched, in case the hemoglobin result was low, they would be prepared. Dr. Jaeger testified that Dr. Fleming was prudent to order D-Dimer and fibrinogen testing in order to determine her coagulation abilities, and the blood was drawn at 2205h, because it takes at least 45 minutes for the lab to process the tests. At 2219h, the blood samples were sent to the lab. Dr. Jaeger was of the opinion that these steps were prudent and reasonable for Dr. Fleming to do and eventually, in cross-examination, Dr. Dugas agreed as well.

[105] All of the experts, Dr. Dugas, Dr. Clark, Dr. Barrett, Dr. Jaeger and Dr. Lightheart concurred that hemoglobin is the test a physician orders when there is a concern about the extent of blood loss in a patient. Dr. Fleming elected to order a hemoglobin test before deciding on the need for a transfusion. In my view, given that the surgeons were confident they had achieved hemostasis and the estimates of blood loss were not excessive, ordering blood work including a hemoglobin was a reasonable approach in the circumstances.

[106] The hemoglobin result was returned at 2240h and it was reported at 99 g/L (“99”). In Dr. Jaeger’s opinion, that hemoglobin reading was satisfactory and was not in any way indicative of the need for a transfusion. She stated it is commonly accepted that for patients with hemoglobin readings of 70 or more and no active bleeding, a transfusion is not indicated. In fact, for a healthy woman in her 30s, Dr. Jaeger testified that a hemoglobin reading in the low 60’s was acceptable as long as there was no ongoing bleeding. The treating doctors who testified at trial all agreed that they would not consider a transfusion in a patient with no active bleed, who had a hemoglobin of 99.

[107] In Cindy’s case, the estimate of blood loss at approximately 1000 cc’s was nowhere near the amount of blood loss that would suggest a transfusion was necessary. Dr. Jaeger pointed out that at the time when Dr. Dugas testified she ought to have received a blood transfusion, her uterus was still exteriorized because the physicians were waiting for urology to attend, and there was no active bleeding. All of the surgeons were unequivocal in their evidence that after the sutures were done, hemostasis was achieved and because Cindy’s uterus was exteriorized, if there was ongoing bleeding that is something that would have been noted and charted and it was not. Dr. Jaeger testified that blood loss of 1000 cc’s does not indicate a transfusion is required in a patient where the bleeding has been controlled and I accept that opinion.

[108] Dr. Jaeger testified that there are risks to a blood transfusion so one isn’t done unless it is absolutely indicated. Cindy was administered Pentaspan, a volume expander, which was appropriate because she needed to increase her volume as it was being depleted. She had also been administered crystalloids. Dr. Jaeger testified that even if the estimates of blood loss were low, a healthy person can compensate with a blood loss of 40%.

[109] The evidence is clear that Dr. Fleming was alive to the issue of blood loss, and the possible need for intervention, at least by the time Dr. Farine returned to the OR at 2122h and wondered if a transfusion was required. Dr. Fleming asked Dr. Simitciu to do an estimate of the blood loss and this was recorded in the Anaesthesiology Record at 2145h at the amount of 1,000 cc’s. This was done by Dr. Simitciu according to the usual procedure: by inspecting the sponges that had been used during the surgery, the drapes at the operative field and the suction canisters.

[110] Furthermore, Dr. Fleming ordered a CBC test which included hemoglobin, D-Dimer, fibrinogen and coagulation tests and both Dr. Dugas and Dr. Jaeger agreed that was prudent in the circumstances. The hemoglobin result is a very important one to physicians who are concerned about the quantum of blood loss. At 2205h, Dr. Fleming ordered 4 units of packed red blood cells to be cross-matched and ready in the lab on a STAT basis (immediate). He testified that he made this order because it takes approximately 45 minutes for the lab to do the necessary work and get the units from the lab to the OR. This was done in case a blood transfusion was necessary.

[111] Several of the experts commented on the risks of blood transfusions and they concurred that blood transfusions carry their own risks: infections and adverse reactions are the most common. In addition, blood is not something that is in unlimited supply. Before a blood transfusion would be done, the physician must be satisfied that it is essential, based on the facts of a particular case. In Cindy’s case, for the reasons articulated, I do not find that the need for a transfusion was clear and it was prudent to order blood work before making the decision.

[112] Dr. Dugas was critical of Dr. Fleming for waiting until the hemoglobin result was received before initiating a transfusion. I do not accept his opinion on this point. In my view, this opinion is driven by a retrospective analysis: that is, by the knowledge after the fact that Cindy experienced DIC. This opinion is also driven by Dr. Dugas’s belief that Cindy’s cardiac arrest was caused by blood loss which was left untreated.

[113] Dr. Fleming is held to the standard of a reasonably prudent anaesthesiologist in the circumstances. He is not held to a standard of perfection, nor is it appropriate to look at the outcome and then criticize Dr. Fleming because he failed to do something that in retrospect may have assisted a patient. Dr. Fleming was dealing with an unusual situation; a patient who had experienced a bleed, that was controlled but who was hypotensive and tachycardic, for reasons that were not clear at the time.

[114] Dr. Fleming ordered blood work, including a hemoglobin result, and he did an estimate of the blood loss during surgery, as did Dr. Simitciu. He was alive to the issue of her blood loss and the possible need for transfusion. He was satisfied with her urine output and she had been given fluids; he felt she had good volume status. He elected to wait for the hemoglobin result, which I find to be reasonable in the circumstances.

[115] When the hemoglobin result came back shortly after 2246h at 99 grams per litre, Dr. Fleming said that result was reassuring. While Dr. Dugas was critical of Dr Fleming for not proceeding with a transfusion around 2250h, Dr. Lightheart, another expert for the Plaintiffs, testified that in her opinion, Dr. Fleming met the standard of care when he decided to wait for the hemoglobin result before deciding on the need for a blood transfusion. Dr. Kandasamy and Dr. Farine when asked both testified that they would not consider a blood transfusion for a patient with a hemoglobin reading of 99. Dr. Clark testified that the hemoglobin result was confirmatory that the blood loss estimates were “pretty accurate” (transcript dated May 29, 2023).

[116] While Dr. Dugas during his examination in chief questioned the accuracy of the hemoglobin result, he later conceded that because there was no evidence of ongoing blood loss after 2130h, when the sample was taken at 2227h, it was likely accurate within about 10% (transcript dated January 19, 2023). Dr. Clark also noted because Cindy had been given large amounts of IV fluids, she was not volume depleted, she was well-hydrated and the hemoglobin values were valid. I do not accept the opinion of Dr. Dugas on this point and prefer the opinions of the other experts, including Dr. Lightheart, that a transfusion was not necessary.

[117] I conclude that Dr. Fleming was not negligent in failing to transfuse Cindy prior to obtaining the hemoglobin result or after the receipt of it.

Undertaking/Planning extubation and administering reversal drugs

[118] After the cystoscopy was completed and the surgery was finished at approximately 2327h, Dr. Fleming instructed Dr. Simitciu to administer the reversal drugs to reverse the effects of the general anaesthesiology. He instructed her not to extubate the patient until further instructions from him; at 2337h, he left the OR to attend to another patient.

[119] Dr. Dugas testified that Cindy remained in shock after the surgery was finished and the plan ought not to have been to extubate her because she still required inotropic support and Dr. Fleming did not know what was causing her instability. Dr. Dugas testified that she ought to have been transferred while intubated to the ICU for ongoing care and support, given her hemodynamic instability. She was unable to maintain her own blood pressure despite significant amounts of medication. Dr. Dugas stated that the decision to administer reversal drugs and extubate Cindy fell below the standard of care in the circumstances.

[120] In Dr. Jaeger’s opinion, Dr. Fleming’s decision to administer the reversal drugs was appropriate. She testified that when the general anaesthesiology is removed “almost always the blood pressure increases.” Following the provision of the reversal drugs, Cindy started to regain consciousness and was responding to commands and making purposeful movements.

[121] When determining whether the actions of Dr. Fleming were negligent, it is important to consider the evidence he had at the time he was making his treatment decisions for Cindy. His decision to administer reversal drugs is not the same as a decision to extubate her. He was clear in his instructions to Dr. Simitciu that she was to start the reversal agents but not commence extubation until Dr. Fleming was present, assessed Cindy and gave those instructions.

[122] At the time, Dr. Fleming knew that the reversal medication generally had an ameliorative effect of a patient’s blood pressure, so he was hoping that would occur. He had not decided to extubate her. I accept Dr. Jaeger’s view that the general anaesthesiology medication had to be stopped at some point and it was appropriate for the reversal agents to be given at the time and Cindy monitored to see how she responded to that. While the removal of the phenylephrine was done at the same time as the reversal medication, Dr. Jaeger testified that Cindy was also started on Pentaspan, a colloid fluid, in order to support her blood pressure. In cross-examination, Dr. Dugas agreed that administering Pentaspan was a prudent step in Cindy’s treatment. Dr. Fleming’s plan was to get her to an awake status and deal with the blood pressure issue.

[123] Once the reversal drugs were given, Cindy became tachypneic, which means that she was breathing rapidly. Her blood pressure was low, around 80/40. Dr. Simitciu administered another dose of reversal medication around 2340h. Following this, Dr. Simitciu testified that her blood pressure improved although she remained tachycardic. She seemed to be responding to the reversal medications and Cindy squeezed Dr. Simitciu’s hand.

[124] In my view, the decision of Dr. Fleming to remove Cindy from general anaesthesiology was reasonable in the circumstances and was an exercise of his clinical judgment. He was aware of Cindy’s instability and while he did not know the cause of it, he thought that the removal of the general anaesthesiology medication would cause in an improvement in her blood pressure. That was a reasonable belief. He had ordered the administration of Pentaspan to assist with her blood pressure and reduce her heart rate, which both Dr. Dugas and Dr. Jaeger testified was a reasonable step.

[125] According to Dr. Jaeger, the usual procedure is for patients to be extubated while they are on the operating table, after the reversal medications are given. This was not done in Cindy’s case; Dr. Simitciu was instructed by Dr. Fleming not to extubate Cindy because he wanted to assess her and see how she responded to the removal of the general anaesthetic. She was kept intubated so that she could be monitored; this was reasonable in the circumstances. The opinion of Dr. Dugas that she should have been transferred while under general anaesthetic to the ICU is, in my view, an opinion driven by hindsight. It is correct that shortly after the general anaesthetic was removed, Cindy suffered a cardiac arrest. However, Dr. Fleming’s decision to remove the general anaesthetic cannot be scrutinized through a retrospective lens; that is not the law.

[126] Dr. Fleming was aware of Cindy’s instability; she was receiving Pentaspan and was on oxygen. His plan was to monitor her and check her response to the reversal agents and then determine if it was appropriate to extubate her. I accept Dr. Jaeger’s opinion that this course of action was reasonable in the circumstances. I find that Dr. Fleming met the standard of care of a prudent anaesthesiologist in his decision to remove the general anaesthetic from Cindy.

Leaving the OR when Cindy was unstable

[127] Dr. Fleming testified that he left the OR twice during Cindy’s surgery, and it was not documented when he left or when he returned, which Dr. Fleming stated was not the usual practice. The second time he left was at 2337h and he could not recall why but stated it must have been urgent. He had asked Dr. Simitciu to administer the reversal drugs so Cindy could be transferred to the floor. At that time, Cindy was unstable; her heart rate was high, her blood pressure was low and he did not know the reason for this; he testified that Cindy was in shock at this time. He advised Dr. Simitciu not to extubate her until he returned.

[128] Dr. Fleming was not certain how long he was away from the OR; he testified it could have been 20-25 minutes and he thought he returned before midnight. When he came back to the OR, Cindy was unconscious, and Dr. Fleming had difficulty getting a blood pressure reading. At that point, Cindy was intubated but not ventilated and her oxygenation saturations were good. Within a minute or 2, her oxygenation started to drop, and her heart stopped. She subsequently stopped breathing and Dr. Fleming called Code Blue and started chest compressions.

[129] Dr. Dugas stated that Dr. Fleming fell below the standard of care by leaving the operating room at around 2327h when the surgery was finished but Cindy was hemodynamically unstable. He noted that Dr. Fleming did not know why Cindy was unstable and leaving her care in the hands of a resident in her second year was negligent. Dr. Dugas testified that the timing of Dr. Fleming leaving was critical and Cindy was a “very complicated case” which needed Dr. Fleming’s personal management.

[130] While Dr. Jaeger agreed that shock is serious and it needs to be recognized and treated, she disagreed with the opinion of Dr. Dugas that Dr. Fleming was negligent leaving when he was called to another case. Dr. Jaeger testified that around the time Dr. Fleming left, she was being properly treated for her hemodynamic instability and the situation was not life-threatening. Her blood pressure was around 80, which is low, but she had adequate urine output and her condition was being monitored by Dr. Simitciu. Dr. Jaeger stated that Dr. Simitciu was a competent resident, and Dr. Fleming had given her clear instructions on what to do; she was instructed not to extubate Cindy. In a teaching hospital such as Mt. Sinai, the staff physicians cannot be present all of the time and if they are comfortable leaving a competent resident or a fellow to deal with a patient, that is appropriate and meets the standard of care.

[131] Dr. Simitciu had started her residency at Mt. Sinai in July 2009; she testified that as of August 2009, she had assisted on perhaps 1 or 2 Caesarean sections in Canada. She had about 3 months of residency training in obstetrical anaesthesia. She had never met Dr. Fleming before August 10, 2009 and had not worked with him previously.

[132] In my view, at 2320h when Dr. Fleming was called away from Cindy’s case to another matter, it was not reasonable for him to leave, and to delegate Cindy’s care to Dr. Simitciu. While Dr. Fleming described Dr. Simitciu in his testimony as a reliable and experienced doctor who was observant and careful (Dr. Fleming’s transcript dated May 24, 2023), it is unclear to me on what basis he made these observations. He had not worked with her previously and was not aware of her experience prior to working at Mt. Sinai. She was not a resident with significant experience in administering anaesthesiology to women in labour. While I appreciate she was a doctor in her native Albania and had some experience there, she was not an experienced resident in obstetrical anaesthesiology in Canada. She had never worked with Dr. Fleming and he had no idea about her level of competency. Cindy’s delivery was not a routine Caesarian section; bleeding had been encountered and was a complication. In addition, during the surgery, Cindy developed hemodynamic instability which required the use of significant amounts of vasopressors and she developed tachycardia and Dr. Fleming did not know the reason for this. I agree with Dr. Dugas’s description of Cindy’s case as “very complicated”.

[133] I do not agree with Dr. Jaeger that it was acceptable for Dr. Fleming to entrust the care of Cindy to a resident he had never met, about whose skills he knew very little, with a patient who was unstable for reasons that Dr. Fleming had not determined. I do agree with Dr. Jaeger that in a teaching hospital, staff specialists get called to other cases and some of them are urgent. Indeed, Dr. Farine was called away to deal with another pregnancy during his care of Cindy. However, whether it meets the standard of care for the doctor to leave to attend another patient is determined by the facts. Dr. Jaeger testified that she assumed Dr. Fleming was “popping his head” in to check on Cindy’s status; however, there is no evidence that this occurred. Dr. Fleming could not recall how long he was out of the OR and he certainly did not say that he checked in on Cindy during the time he was attending to another patient.

[134] While Dr. Farine left the OR and entrusted the care of Cindy to Dr. Yinon, that was a different situation because Dr. Yinon who was a skilled fellow in the final portion of his second fellowship. When Dr. Yinon was assigned as the surgeon to do the C-section, there was nothing unusual in Cindy’s presentation. The decision to proceed with a C-section was due to the brow presentation of the fetus. That was entirely appropriate but factually a very different situation than Dr. Fleming leaving the OR and entrusting Cindy’s care to Dr. Simitciu. By that time, she was a complicated patient, having encountered bleeding during the C-section as well as hemodynamic instability. Dr. Fleming was not gone for a few minutes; by his own estimate, he was absent for 20 minutes or more. He was aware of Cindy’s hemodynamic instability and he had not imparted that information to the surgical team. It is unclear from the evidence what the level of discussion was between Dr. Fleming and Dr. Simitciu concerning Cindy’s instability; she could not recall the details. By the time he returned, Cindy had deteriorated markedly and soon after, she suffered a cardiac arrest.

[135] While I accept that in a large, busy hospital the on-call physicians are required to assist other patients and they must leave the care of a patient in the hands of a resident or a fellow, it is a judgment call that must be made by the staff doctor, taking various factors into consideration. The factors would include the complexity of the case, the status of the patient, and the abilities of the resident as well as the nature of the case that he or she is being asked to attend on. Dr. Fleming was unable to recall the particulars of the case he was asked to attend on, which is not surprising given the passage of time. While I agree with Dr. Jaeger that while Dr. Fleming was absent from the OR he was still managing the patient and the decisions made were his, that does not mean it was appropriate for him to leave when he did, taking into account Cindy’s status and the difficulties he had encountered with her vital signs.

[136] I find Dr. Fleming breached the standard of care of a reasonable and prudent anaesthesiologist when he left the OR the second time, at 2320h. His patient was unstable and in shock and he did not know the reason for it. He left the care to a second-year resident who had very little experience with C-sections in Canada and with whom he had not previously worked. That was not a reasonable decision in the circumstances, and I find it a breach of the applicable standard of care.

Failing to document and complete the anaesthesiology record

[137] The anaesthesiology record is used to record a patient’s vital signs, the administration of drugs and various interventions. There are no notations in the anaesthesiology record from 2320h until the time of Cindy’s arrest at 0006h. During this period of time, the surgery was being completed, and the reversal drugs were given and there are no notes in the chart of Cindy’s vital signs, or of her responses. This was a critical time for Cindy.

[138] Dr. Simitciu testified that she last charted Cindy’s vital signs at 2320h when her blood pressure was 90/45 and her heart rate was 130. She explained that she did no further charting because she was waiting for her to wake up from the anaesthesiology and she was not focusing on the chart. Rather, she was preparing the reversal drugs and planning the extubation for when Dr. Fleming returned. She planned to obtain the vital signs from the machines later and update the chart. However, Cindy arrested and the resuscitation team attended and Dr. Simitciu was unable to complete the anaesthesiology record.

[139] Dr. Dugas was critical of Dr. Fleming for leaving Dr. Simitciu, a second-year resident, to deal with a complicated and challenging case. Initially, he offered the opinion that Dr. Simitciu was not negligent for failing to fill out the Anaesthesiology Record because Dr. Fleming was responsible for her actions. Later in his evidence (page 177 of January 18 transcript) Dr. Dugas said that the failure of Dr. Simitciu to complete the anaesthesiology record contemporaneously was unacceptable:

Well, it falls below the standard of care certainly. You know, our -- you know, I always tell -- believe it or not, I tell medical students and residents that your Anesthetic Record is a time and date-stamped medico-legal document. Like it is telling the story of your anesthetic, and it is important. It is important because when I transfer a patient to the ICU, the ICU doctor will look at this note because they'll dictate it in their note what the course of the intraoperative events were. Like it is a very valuable communication tool, and so it is very important that it is accurate and complete.

[140] Dr. Dugas testified that the failure to fill out the anaesthesiology record for 46 minutes falls below the standard of care. Understanding Cindy’s progress in the 46 minutes prior to her arrest would have been valuable information for the ICU team.

When Dr. Fleming was asked about this at trial, he agreed the failure to complete the anaesthesiology record, which he later signed, did not meet the standard of care. Dr. Jaeger in her evidence in chief did not comment on the failure to complete the anaesthesiology record. Under cross-examination, she stated that the machines were running so in that sense, Cindy was being monitored and the doctors were aware of how she was doing. She stated that later there were notes in the chart from Dr. Fleming and Dr. Simitciu and that often when there is a catastrophic event, the chart gets taken away and cannot be completed. Dr. Jaeger seemed unwilling to concede this breach of the standard of care, even though Dr. Fleming himself had admitted it. Eventually, Dr. Jaeger agreed that the standard of care required the completion of the hospital chart. Dr. Jaeger did not address the issue of the incomplete anaesthesiology record in her report because she said it did not affect the outcome for Cindy and there were extenuating circumstances that prevented the completion of the record.

[141] While I do concur that a patient’s care must be the priority and notes may have to wait, there were no notations in the anaesthetic record for more than 40 minutes, a time that was critical. The experts concurred that the standard of care required the chart to be completed. An identified breach of the standard is not dependent on whether or not it would have changed the treatment that was provided or the clinical decisions that were made. That is not the applicable test when determining whether a breach of the standard of care was made by a physician.

[142] In my view, whether the completion of the anaesthesiology record made a difference in Cindy’s outcome is irrelevant to whether the failure to complete it met the standard of care for an anaesthesiologist. While I agree there were extenuating circumstances, and of course, patient care is the first priority, I do not find that from 2330h when the reversal drugs were given until 0006h when Cindy arrested, the failure to make any entries in the anaesthesiology record meets the standard of care.

[143] I appreciate that after Cindy arrested and the chart was taken with her to the ICU, Dr. Simitciu could not fill out the anaesthesiology record and that she did some documentation later as a progress note. I also accept that in the OR it can be very busy and attending to the patient is the first priority; however, Cindy was unstable and neither Dr. Fleming nor Dr. Simitciu knew why. She was being closely monitored as the reversal drugs were being administered; it was a period of more than 40 minutes. I do not accept that it was reasonable to fail to make any entries in the chart during this critical period of time. It was essential that the anaesthesiology record be maintained and accurate and the failure to do so in the circumstances falls below the standard of care and constitutes negligence.

CAUSATION

Did any negligent care cause Cindy’s damages?

[144] As a result of the events of August 10 and 11, 2009, Cindy has been left with profound brain damage. The issue of the extent of her injuries was not before me on this trial, but counsel agree that Cindy suffered injuries that have left her in a vegetative state, and that there is no hope for improvement. It is an understatement to say it is a tragedy for Cindy and for her family. No one anticipates a young woman entering the hospital for the delivery of her baby to end up in the state that Cindy is in.

[145] At the heart of this case is the issue of causation. The question for my determination, based on the evidence I heard, is what was the cause of Cindy’s cardiac arrest which led to the resultant brain damage? The experts retained by the parties do not agree; very different opinions were articulated at the trial by eminent medical specialists concerning what caused Cindy’s heart attack.

[146] The Plaintiffs assert that Cindy suffered an arterial bleed and resulting blood loss, which was not recognized by the doctors. It led to hypovolemic/hemorrhagic shock which was left untreated and caused her cardiac arrest. The Defendants state that Cindy had the very rare condition of an amniotic fluid embolism (“AFE”) which could not have been predicted and which inevitably results in the death or very serious injury to the mother.

[147] In complicated cases with causation as a critical issue, the Court looks to and relies on the expert opinions from specialists in their respective fields. Cases involving allegations of medical negligence turn, to a great extent, on the expert opinions so it is essential that counsel secure opinions from experts qualified in the area, with clinical expertise, who are not “hired guns”. In this case, I had the benefit of excellent expert witnesses. The physicians who testified as Rule 53 experts were extremely knowledgeable in their respective areas and took their duties as Rule 53 experts very seriously; while they were confident in their opinions, they were not advocates for a position and they did their best to assist the Court in determining what caused Cindy’s cardiac arrest following the delivery of her son.

The Law

[148] There is reference in the written submissions from counsel for the Plaintiffs to the “contribution” of a negligent act to the injury sustained by a Plaintiff and it is submitted that the legal test for causation in this case is, “Did the Defendants’ breach(es) of the standard of care cause or contribute to the harm that Cindy suffered?” The Defendants submit that the appropriate causation question is, “Did the Plaintiffs prove on a balance of probabilities that Cindy would not have suffered the injuries but for the Defendants’ negligent conduct?”

[149] Factual causation requires the Court to determine on a balance of probabilities what caused Cindy’s cardiac arrest: the arterial bleed and resulting blood loss; or the occurrence of an AFE? Legal causation requires the Court to answer the question, “But for the negligence, would Cindy have suffered a cardiac arrest?” The onus rests on the plaintiff to prove on a balance of probabilities that a defendant’s negligence caused the plaintiff’s harm both in fact and in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 11.

[150] Causation in complex tort cases can be a challenging issue, particularly if there are multiple defendants and other causes involved. In Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 the Supreme Court of Canada provided guidance on how the courts should approach causation and confirmed that there must be a nexus between the tortious act of the tortfeasor and the injury suffered by the victim and the plaintiff must prove the negligence and the connection between it and the damages suffered. Snell stated, at paras. 30–39, that causation need not be determined by scientific proof; the court must adopt a robust and pragmatic approach to causation; and an inference of causation may be drawn in the absence of evidence to the contrary called by the defendant.

[151] As was noted in Granger v. Ottawa General Hospital (1996), 7 O.T.C. 81 (Gen. Div.), at para. 37, “It is for the proponent to prove causation on a balance of probabilities and the onus is not met by demonstrating the possibility of a causal connection.” [Emphasis mine].

[152] The “but for” test applies even where a defendant’s negligence is not the sole cause of the Plaintiff’s injury. A defendant will be liable for all injuries caused, or contributed to, by his or her negligence, even if other non-tortious causes are present: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at paras. 12 and 17. Indeed, there are usually a number of background factors that cause an injury and not only a single cause. A defendant only needs to be “a” cause of “some” harm to be found liable in tort.”

[153] The law is clear that a defendant’s breach of the standard of care has to make a difference in the outcome of the Plaintiff; it must “play a role in the eventual harm the Plaintiff suffered.” In his article Keeping Causation Simple, Ontario Trial Lawyers Association Litigator, 2023, Professor Knutsen notes that the “but for” test is the proper causation test and in cases where the “but for” test would be difficult to apply, the Court must attempt to analyze causation in simple, basic terms that are reflective of the established jurisprudence.

[154] In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the Supreme Court considered the issue of the “but for” test for causation in the context of a case where there was more than one potential cause of the Plaintiff’s injuries. The Court confirmed the proper test was “but for” which was to be used in cases with multiple causes, some compensable, some not. As well, the Court confirmed the principle that there must be a substantial connection between the injury and the negligence of the Defendant.

[155] In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, Chief Justice McLachlin stated the law of causation: “The test for showing causation is the ‘but for’ test. The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.”

[156] Since Clements, various courts have considered the issue of causation in the context of a variety of cases with different factual matrixes. Causation becomes complicated when there are other factors involved, some which are unrelated to the events giving rise to the litigation, but which are relevant and caused some of the harm the Plaintiff suffered. It can also be complicated by the actions of multiple tortfeasors, who were negligent at different times.

[157] Courts have articulated different tests for causation depending on the factual matrix of the case at hand: the “but for test”; “caused or contributed to”; “a cause”; “material contribution”’; “substantial contribution”; “contribution to risk”; and “a necessary cause”.

[158] In Donleavy v. Ultramar, 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at paras. 62 and 72, Justice van Rensburg noted,

The “but for” test is generally applied in establishing causation in the tort of negligence. It requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one of more of the defendants, the injury would not have occurred. A defendant’s negligence is thus a necessary factor to bring about the injury...

…Causation is made out under the “but for” test if the negligence of a defendant caused the whole of the plaintiff’s injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained. Causation requires a “substantial connection between the injury and the defendant’s conduct.”

[159] In my view, the appropriate causation test in the case before me is the “but for” test as articulated in Clements and confirmed in Donleavy and other cases. While the instant case involves multiple potential tortfeasors, it can be distinguished from cases such as Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, which involved multiple defendants who were involved in the care of the plaintiff at different times over the course of days, and in different respects and against whom different allegations of negligence were made. The facts in the trial do not make it a case of “circular causation” as described by Professor Knutsen in “Clarifying Causation in Tort”, (2010) 33 Dal. L.J. 153 and referred to in Sacks, where one Defendant’s negligence in isolation isn’t necessary to cause an injury but combined with the negligence of other tortfeasors, the cumulative effect of the multiple breaches causes damage.

[160] Although there are 5 Defendants against whom negligence was asserted at trial, this case does not fall into the category of cases with multiple tortfeasors and an indivisible injury that are discussed in Sacks and Donleavy, supra. It is not an “exceptional case” referred to in those cases where there are negligent acts by multiple defendants and where the evidence is that one or more of them caused the injuries but it is impossible to show which of the negligent acts caused the plaintiff’s injuries.

[161] In the instant case, the Defendant doctors were all involved in Cindy’s C-section and provided their treatment at the same time. While the surgeons played a different role than did the anaesthesiologists, they were all involved in a single event, Cindy’s surgery. All of the allegations of negligence relate to the actions which took place in the OR by the anaesthesiologists and the obstetricians during the C-section and its aftermath. As a result, the causation analysis is straightforward and is amenable to the “but for” analysis.

[162] As explained previously, I did not find breaches of the standard of care relating to the obstetricians. As a result, the question to be determined is: “But for the negligence of Dr. Fleming and Dr. Simitciu, would Cindy have suffered the cardiac arrest?” As noted above, the parties advanced very different explanations for what happened to Cindy and what led to her cardiac arrest. The competing theories, hemorrhagic shock versus AFE, must be examined and the evidence in support considered.

[163] The Court must therefore determine from the evidence on a balance of probabilities what caused Cindy’s cardiac arrest and whether the breaches of the standard of care by Dr. Fleming and Dr. Simitciu caused the cardiac arrest?

The Evidence

[164] The Plaintiffs called as expert witnesses Dr. Lightheart, the obstetrician, and Dr. Dugas, the anaesthesiologist on the causation issue while the defence called Dr. Clark and Dr. Barrett, both obstetricians, as well as the anaesthesiologist Dr. Jaeger.

[165] Of the three expert obstetricians Dr. Clark and Dr. Barrett are specialists in maternal fetal medicine, a fellowship which requires 2 more additional years of training after qualification as an obstetrician and gynecologist. Dr. Clark practices at a teaching hospital in Houston, Texas and is a professor at the medical school there. Dr. Clark focuses his practice on critical care obstetrics, which is the care of pregnant women with serious illnesses and is a subspecialty within maternal-fetal medicine. Dr. Clark’s practice involves the treatment of critically ill women, those with cancer, strokes, hemorrhage, and serious heart issues while pregnant.

[166] Dr. Clark testified that AFE is an area of particular interest to him and he has written extensively on this topic in peer-reviewed journals. He has also written and lectured around the world in the area of maternal hemorrhage, which is also a significant cause of death in pregnant women. Dr. Clark testified that AFE is a major cause of maternal death in any developed country.

[167] Dr. Clark’s experience in the area of AFE, which is a rare occurrence, is impressive. I found Dr. Clark to be very knowledgeable and he answered questions fairly and impartially; he was not an advocate. Because of his extensive experience with AFE and his experience in the treatment of critically ill pregnant women who suffer hemorrhages and heart issues while pregnant, as well as the manner in which he comported himself as a witness, I attach significant weight to his opinions. As I have noted with the other experts, Dr. Clark fulfilled the role of an expert qualified by the Court pursuant to Rule 53.03; he was of great assistance to the Court in a very specialized area.

[168] It was acknowledged by all the experts that Dr. Clark is one of the world’s leading experts in the area of AFE, even though Dr. Lightheart and Dr. Dugas disagreed with his view that Cindy experienced an AFE. That, in my view, is one of the hallmarks of an expert who understands the duty to the Court: he or she is willing to acknowledge that an expert retained by opposing counsel has more expertise in a certain area than they do, yet they remain firm in their own opinion. As well, the fact that an expert has superior qualifications or an area of sub-specialty, does not mean that his or her opinion will be preferred by the Court over other lesser qualified experts; the persuasiveness of an expert’s opinion and the value attached to it is comprised of a combination of factors. The Court may not be persuaded by an expert with impressive credentials whose opinion is not rooted in the evidence or who conducts himself or herself in court as an advocate.

[169] Dr. Clark was one of the physicians in the United States who worked on developing criteria for diagnosing AFE. This research was reported in the American Journal of Obstetrical Gynecology, the October 2016 edition, which was marked as exhibit 10 at the trial. Dr. Clark testified that the group identified 4 clinical criteria which are associated with AFE, if no other diagnosis is possible:

1. sudden onset of cardiorespiratory arrest, or both hypotension (systolic blood pressure less than 90 mmHg and respiratory compromise (oxygen saturation less than 90%);

2. evidence of DIC with the requirement that it be diagnosed prior to the loss of enough blood, which itself would account for shock related consumptive coagulopathy, to distinguish AFE from simply hypovolemic shock;

3. clinical onset during labour or within 30 minutes of delivery of the placenta, although there may be a delay in the recognition of it, especially with a Caesarean delivery under general anaesthesia due to ongoing routine respiratory and hemodynamic support;

4. no fever during labour.

[170] I set out the criteria here, because all of the experts made reference to them during the course of their testimony.

[171] The Plaintiffs advance the theory that the cardiac arrest was caused by excessive blood loss, left untreated, leading to hypovolemic shock. They assert that Dr. Fleming was aware that Cindy was in shock but he failed to impart that information to the surgeons, he left the operating room and she deteriorated. She did not get a blood transfusion to remedy the hypovolemic shock and as a result, she arrested. The Plaintiffs assert that there were multiple breaches of the standard of care that led to Cindy’s arrest.

[172] The Defendants have an entirely different theory of causation. They state that Cindy had the very rare condition of an amniotic fluid embolism (“AFE”) which could not have been predicted and which inevitably results in the death or very serious injury to the mother. Simply put, an AFE occurs when fetal tissue, which is separate and distinct from maternal tissue, enters the circulation of the mother through a laceration in the birth canal. In the vast majority of births, this does not create a problem. However, in a very small percentage of cases, this transfer is not innocuous, and it leads to an overwhelming response in the mother which leads to very severe outcomes, often death. Dr. Clark described it as a “cytokine storm”. These particles attack the function of the heart, causing a fall in blood pressure. They move on to attack the lungs, preventing the transfer of oxygen, which can result in death. They cause disseminated intravascular coagulation or DIC, a consumptive coagulopathy which causes the clots to form and dissolve until the clotting factors are used up and the patient bleeds from many sources.

Dr. Dugas

[173] Dr. Dugas acknowledged that he is not an expert in the area of AFE and he did not refer to it in his written reports because he did not feel he had the expertise to opine in this area. While I accept Dr. Dugas’s view that AFE was outside his realm of expertise, when offering a causation opinion to the Court on this case, given that the treating doctors considered AFE as a differential diagnosis at the time of the events, in my view, Dr. Dugas ought to have referenced it in his written report. Rule 53.03(2.1) requires that an expert include in a report the reasons for his or her opinion including the reasons for the expert’s own opinion in the range of opinions. Given the experts retained by the defence opined that Cindy suffered an AFE which caused her cardiac arrest, in my view, Dr. Dugas ought to have dealt with the AFE possibility in his report, notwithstanding he is not an expert in that specific area.

[174] The experts concurred that hemorrhagic shock and AFE have similar and overlapping features and this is an additional reason that Dr. Dugas ought to have considered AFE as a possibility. Both have hypotension and coagulopathy as features. Because there is no definitive test for AFE, in my view, as an expert trying to arrive at an opinion on causation, Dr. Dugas was obligated to at least consider AFE and if he rejected it, in accordance with Rule 53, he ought to have set out the reasons why he excluded it as a possible diagnosis. If he felt that he did not have the proper expertise to comment on AFE as a diagnosis for Cindy’s heart attack, he should have stated that from the outset and the limitations on his causation opinion would have been evident.

[175] In his testimony, Dr. Dugas explained why he is of the view that Cindy suffered from hypovolemic shock due to hemorrhage. She had an identifiable source of bleeding, her hypotension did not respond to the vasopressor medication she was administered, she was pale, and she was acidotic, which was caused by the under-perfusion of her organs. He explained that because she had bled significantly and was not transfused, her vascular system did not have enough blood to maintain the perfusion to her organs. Thus, she went into shock. Because the hemorrhagic shock was not dealt with in a timely fashion, she deteriorated and developed metabolic acidosis, which led to critical arrythmia and her cardiac arrest.

[176] Dr. Dugas stated that he carefully reviewed all of the materials, including the medical records and discovery transcripts and his opinion was that “everything fit” with hemorrhagic shock (transcript dated January 18). He is of the view that Cindy had unmitigated bleeding over the course of 3.5 hours until she arrested. The hemorrhage triggered the DIC, Dr. Dugas testified, “without question.” This went undetected by the doctors. Dr. Dugas testified that hemorrhagic should have been at the top of the list of differential diagnoses and she should have been given a blood transfusion, which would have prevented the heart attack. The fact that when she was given a blood transfusion after the heart attack with good response was proof that her hemodynamic instability was caused by a bleed.

Dr. Lightheart

[177] Dr. Lightheart testified that Cindy became hemodynamically unstable during her surgery because of the loss of significant amounts of blood. The surgeons were not aware that her blood pressure had dropped, and the anaesthesiologists were administering vasopressors in an effort to maintain it. Cindy was not given blood transfusions, her blood volume was not replaced, and consequently, she developed hypovolemic shock. She suffered DIC, she was oozing blood from everywhere; this was found by Dr. Laframboise the next morning during a laparotomy. Dr. Lightheart testified that the DIC was caused by excessive blood loss, which also caused her cardiac arrest.

[178] Dr. Lightheart was asked about the possibility that Cindy suffered an AFE. In her career, Dr. Lightheart has seen 2 cases of AFE; it is very rare, perhaps 1 case in 100,000 pregnant women. While she considered it as a possible cause of Cindy’s cardiac arrest, she rejected it because Cindy did not have the criteria established by Dr. Clark to diagnose AFE; specifically, there was a significant delay in the onset of symptoms. Dr. Lightheart acknowledged that the Defendant physicians at the time of these events were attempting to distinguish between the features of hemorrhagic shock and AFE. She agreed there was no definitive test for either condition and there is a substantial overlap in presentation of them, with similar features.

[179] In cross-examination Dr. Lightheart agreed that Cindy had good urinary output, which does not support a diagnosis of hemorrhagic shock. She also agreed that Cindy met the criteria as developed by Dr. Clark for AFE if it wasn’t necessary for all of the criteria to be present within 30 minutes of the delivery of the placenta.

Dr. Clark

[180] Dr. Clark testified that AFE is an extremely rare condition which occurs in a very small percentage of labouring women and is usually fatal; it is a major cause of maternal death in any developed country.

[181] He described the process which commences when fetal tissue enters the circulatory system of the mother and causes an overwhelming rejection reaction. This creates a devastating response in the mother, and often leads to cardiac arrest and death. Dr. Clark likened the experience of AFE to the response of people to being stung by a bee: in the vast majority of people, a bee sting is a minor irritant. However, in very rare cases, a person can have a massive reaction to a bee sting that can be fatal. Dr. Clark stated that Cindy had all of the classic features that are indicative of AFE and he is of the opinion that Cindy had AFE and that caused her cardiac arrest.

[182] While AFEs do not necessarily cause cardiac arrests in every case, it depends on their level of severity. AFEs can attack the heart, the lungs, or they can cause the process of disseminated intravascular coagulopathy or DIC, which Dr. Clark described as occurring when something enters the bloodstream and causes the system to go “completely haywire” and the clots that are usually made are dissolved, made again, dissolved, created until no clotting factors remain. The patient bleeds uncontrollably from all places in the body.

[183] A patient with an AFE could experience cardiac arrest from damage to the heart, from damage to the lungs causing an inability to oxygenate, from massive hemorrhage or from a combination of these 3 things.

[184] Dr. Clark is of the opinion that after the injury to the uterine artery was noted, the obstetrical team sutured the artery and there was no ongoing bleeding, which meant that hemostasis was achieved. Dr. Clark was confident that because the uterus was exteriorized, if there was ongoing bleeding, it would have been noted by the doctors who were present. The operative note confirms that after the uterus was put back in the abdomen, the surgeons checked and there was no bleeding. The urology team confirmed there was no injury to the bladder or to the ureter.

[185] Dr. Clark rejected the theory that Cindy’s cardiac arrest was caused by hemorrhage. He noted that the blood loss estimates ranged from 1000 to 1600 cc’s of blood, which he stated was nowhere near the amount of blood loss necessary to cause cardiac arrest in a young, healthy woman. Even if Cindy’s blood loss was double that, Dr. Clark stated it would not be sufficient to cause her cardiac arrest.

[186] During the trial there were challenges to the quantity of blood Cindy lost as estimated by the doctors who were present. The experts agreed that there is a certain lack of precision generally in the estimate of blood loss; some doctors might underestimate it while others might tend to overestimate it. There is a certain amount of subjectivity to the assessment process. I agree with Dr. Clark that there is no reason to think that the estimate of someone else doing it for the purposes of the lawsuit would be more accurate than that of the treating practitioners.

[187] Furthermore, Cindy’s hemoglobin reading of 99 from blood taken at 2227h is confirmatory of a blood loss of something less than 1500 cc’s. Dr. Clark confirmed there was no reason to believe that the hemoglobin result was in any way inaccurate. Dr. Clark testified that a hemoglobin reading of 99 was “not even close to being an indication for blood transfusion or an indication…that would even raise any alarm about the possibility for transfusion at that time once you get that result back.”

[188] The second hemoglobin result that was taken approximately 45 minutes after Cindy’s cardiac arrest, after she had received 2 units of packed red blood cells, does not support the theory that Cindy had lost significant amounts of blood during the surgery. The second hemoglobin reading was 94; Dr. Clark explained that considering the blood she received, the lowest her hemoglobin could have been at the time of her arrest was 74, which is low but not indicative of a need for transfusion. In fact, it is only when a patient’s hemoglobin dips below 70 that consideration is given to a transfusion; but even that reading would not cause a cardiac arrest in a young, healthy person. Dr. Clark testified that a hemoglobin of 74 is not indicative of the need for an urgent transfusion. He stated that a woman with a hemoglobin of between 30-40, would need a blood transfusion but would not suffer a cardiac arrest as a result of her low blood.

[189] A D-Dimer test measures fibrinogen, or the clotting factors. Blood taken at 2205h showed a D-Dimer result of 35.2, which Dr. Clark said is as high as a lab can measure. Dr. Clark noted that this result, which is extraordinarily high, shows an active ongoing clotting/dissolving process which is known as consumptive coagulation. He described it as “massive”. In his opinion, without question, the D-Dimer result is not consistent with simple blood loss. Rather it is indicative of blood that is not clotting properly, with the clots dissolving. It was indicative of DIC, which is associated with AFE. At that point, Cindy had a fulminant DIC, but it was not causing her to bleed as of 2205h, based on other bloodwork readings.

[190] Dr. Clark stated that for a woman who had delivered a baby 2 hours prior to a D-Dimer result of 35.2 without any evidence of placental abruption, the only thing that could cause the DIC would be an AFE. There is no other explanation for the consumptive coagulopathy, according to Dr. Clark.

[191] Furthermore, the results from blood taken at 0050h after Cindy’s arrest, specifically the DIC, demonstrated the classic progression of AFE, according to Dr. Clark. He noted that DIC is associated with 2 conditions in pregnant women: a placental abruption; and AFE. Cindy did not have a placental abruption.

[192] In Cindy’s case, she had disseminated intravascular coagulopathy, or DIC, which is what AFE causes typically. Dr. Clark noted that after the uterine artery was sutured, there was no ongoing bleeding; this was known to be correct because her uterus was exteriorized while waiting for the cystoscopy to be done. When the urologists did the test, they confirmed that neither the bladder nor the ureters had been damaged during the surgery so there was no bleeding. Before the uterus was placed back in Cindy’s abdomen, the surgeons checked and there was no evidence of ongoing bleeding; that was documented in the hospital records.

[193] Dr. Clark dismissed the possibility of Cindy’s cardiac arrest being caused by blood loss, noting that the estimated blood loss was between 1000-1600 cc’s and that amount of blood loss in a young woman would not cause cardiac arrest. He stated unequivocally that Cindy’s cardiac arrest was totally unrelated to any blood loss she had from the uterine injury. Dr. Clark noted that the hemoglobin reading of 99 supported that she had lost less than 1500 cc’s of blood. In his opinion, that reading was reassuring and would not raise the question of the need for a blood transfusion. A hemoglobin reading of 99 from blood that was taken at 2227 was a valid indicator of her blood loss at that time. That amount of blood loss, according to Dr. Clark, would never cause hemorrhagic shock or a cardiac arrest.

[194] In Dr. Clark’s opinion, Cindy had 3 criteria for AFE: drop in blood pressure; cardiac arrest and lung injury; and DIC. After delivery, her blood pressure started to drop within minutes of delivering her baby; that is usually the first sign of a process that is developing. She had a cardiac arrest within 3 hours of delivery and the DIC caused a direct injury to her lung, which is documented at 0152h in the hospital records. The partial oxygen pressure reading was very low, which is a sign of direct lung injury. Despite the fact that Cindy was on oxygen, her lungs were not functioning.

[195] Although the criteria for AFE include onset within 30 minutes of delivery, Dr. Clark explained that when her blood pressure began to fall, she was administered intravenous fluids, oxygen and vasopressors, because she was already in an operating room having a Caesarean section. These measures supported her cardiac function and delayed the cardiac arrest. The criteria are intended for cases of “classic” AFE but perhaps a quarter of all cases of AFE are not the classic cases.

[196] In the experience of Dr. Clark, the AFE that Cindy suffered was of the worst severity. He coagulopathy was extremely bad and the lung injury was very severe. The injury to her heart caused a cardiac arrest so in his opinion, the severity of the AFE was “about as severe as they come.” (transcript page 70). In Dr. Clark’s opinion, the fact that Cindy survived was unusual.

Dr. Barrett

[197] Dr. Barrett is a specialist in maternal fetal medicine and worked at Women’s College Hospital from 1995 dealing with high-risk pregnancies. He relocated to McMaster University in 2021 where he is a professor and Chair in Obstetrics and Gynecology. He has taught nationally and internationally and has supervised postgraduate programs related to high-risk pregnancies. Dr. Barrett was qualified to offer an expert opinion on the standard of care of the obstetricians and on the issue of causation. I found Dr. Barrett to be an impressive witness, fair in his evidence and of great assistance to the court.

[198] Dr. Barrett stated that the extension into the uterine artery was a complication, but not an unusual one. After the bleed was identified and sutured and the decision made to have urology check for further damage, Cindy’s uterus was exteriorized. Urology took close to 40 minutes to arrive and while her uterus was exteriorized, the surgical field was visible. Dr. Barrett was confident that there was no ongoing bleeding because it would have been visible. Furthermore, when the uterus was placed back inside the abdomen, the surgeons did another check for bleeding and there was none identified. To use Dr. Barrett’s words, it would be “hard to conceive” how there could have been further bleeding that was not noticed by the attending doctors.

[199] Dr. Barrett stated his opinion that Cindy suffered an AFE, which is a diagnosis of exclusion. He based his opinion on several facts. First, her blood loss was estimated by 3 doctors who were providing care to her at the time and there was no reason to disbelieve their estimates. Certainly, she did not suffer from a massive blood loss. Second, the hemoglobin result was inconsistent with significant blood loss. After 2100h there was no sustained hypotension and the blood sample done at 2205h was clotted. In patients with post partum hemorrhage, the clotting factors are lost but Cindy’s were not. The blood sample was indicative of an AFE in progress, according to Dr. Barrett. That Cindy had DIC was confirmed by later testing and events.

[200] Dr. Barrett explained that there are 2 main types of coagulopathy: dilutional which occurs when a patient loses a significant amount of blood; and disseminated coagulation or DIC where the patient uses up all of the coagulation factors and bleeds from everywhere. Cindy clearly had DIC and the blood work, including the D-Dimer results, all point to her experiencing an AFE.

Dr. Jaeger

[201] Dr. Jaeger has practiced as an anaesthesiologist at Kingston Health Sciences Centre since January 2000. Doing obstetrical anaesthesia has been a routine part of her practice since she commenced her work as an anaesthesiologist. Dr. Jaeger teaches at Queen’s University and has been involved in the supervision and training of residents in anaesthesiology for years. She was qualified to provide an opinion on standard of care of anaesthesiologists and on the issue of causation.

[202] Dr. Jaeger testified that the decision to convert Cindy from a regional anaesthesiology to a general at 2205 was appropriate and reasonable, given her distress and her vital signs at the time.

[203] The hemoglobin reading of 99 from blood taken at 2227h according to Dr. Jaeger indicated that a blood transfusion was not necessary, and it was consistent with the estimate of 1000 cc’s of blood loss during the surgery. Dr. Jaeger stated that Cindy was not bleeding at that point, because her abdomen was open and any active bleeding would have been visible to the surgeons. In her opinion, Dr. Fleming was aware that Cindy was hemodynamically unstable and was trying to determine its cause, which was why he sent the bloodwork off for analysis.

[204] Dr. Jaeger concurred that Cindy was not volume depleted which can lead to a hemoglobin reading being artificially high and she was also putting out a good amount of urine. Dr. Jaeger testified that the hemoglobin reading of 99 was reassuring and indicative that she had not suffered significant blood loss. For a patient to have a cardiac arrest from blood loss, it would have to be an overwhelming amount of ongoing, continuous blood loss which was not present in Cindy’s case. The evidence in Dr. Jaeger’s view was “overwhelming” that Cindy did not have an active bleed nor had she lost a significant amount of blood.

[205] The blood work results showed she was in fulminant DIC with no ability to clot, she was bleeding from everywhere. In her opinion, the cause of Cindy’s DIC was an AFE, which invariably ends up with the sequelae of a patient having DIC that develops very rapidly. Dr. Jaeger stated there is a known relationship between consumptive coagulopathy (DIC) and AFE but dilutional coagulopathy is not necessarily related to AFE. In her opinion, Cindy’s presentation was very typical of and consistent with AFE. She stated that nothing the doctors could have done would have prevented AFE from occurring.

Analysis

[206] The experts agreed that hypovolemic shock and AFE have some common elements and that Cindy had features that were consistent with both of these theories. The treating practitioners noted this as well.

[207] The Plaintiffs assert that Cindy experienced ongoing bleeding after the suturing of the uterine bleed, which was not recognized or treated. I do not find that the evidence supports this contention. Initially, Dr. Yinon noted the bleed at the left uterine artery caused by the extension at the time of the surgery and he and Dr. Kandasamy sutured the area. When Dr. Farine inspected the area, he noted bleeding and additional sutures were applied, and hemostasis was achieved at 2130h.

[208] Dr. Farine contacted urology to attend to inspect the ureter, bladder and kidneys to ensure no further bleeding was present. While waiting for the urology team, Cindy’s uterus was exteriorized. Urology took close to 40 minutes to arrive and while her uterus was exteriorized, the surgical field was visible. No one noted any bleeding. Dr. Yinon, Dr. Farine and Dr. Kandasamy testified it was not possible there was ongoing bleeding while they were waiting for urology Dr. Yinon and. Dr. Yinon testified that as a surgeon, he was always concerned about the possibility of hidden bleeding during a Caesarian section so he would have checked for this with Cindy very carefully.

[209] The hospital record confirms that at 2327h when Cindy’s uterus was returned to the abdomen and the doctors were preparing to close, “Hemostasis was again assured after a second inspection of the uterine incision.” (Operative report Joint Book of Documents).

[210] Dr. Barrett was confident that there was no ongoing bleeding because it would have been visible. Furthermore, when the uterus was placed back inside the abdomen, the surgeons did another check for bleeding and there was none identified. To use Dr. Barrett’s words, it would be “hard to conceive” how there could have been further bleeding that was not noticed by any of the attending doctors. Dr. Barrett and Dr. Jaeger both testified that if a patient has retroperitoneal bleeding, there will be evidence of it that cannot be missed. Such bleeding cannot be “hidden” from the view of the surgeons, who were checking for bleeding. I accept this evidence.

[211] While Dr. Dugas testified that Cindy was in hemorrhagic shock and the cause of it was an active bleed, he could not identify any evidence demonstrating an ongoing bleed after the artery had been sutured. Dr. Lightheart commented that it was possible there was hidden bleeding, I find that to be a general statement. A “possibility” is not persuasive evidence that bleeding did occur which was not noted or observed by any of the surgeons at the time. Ultimately, both Dr. Lightheart and Dr. Dugas agreed there was no evidence of active bleeding after 2130h.

[212] I accept the opinions of Dr. Barrett, Dr. Jaeger and the Defendant obstetricians and find there was no evidence of ongoing bleeding after the artery was sutured the second time.

[213] Dr. Lightheart and Dr. Dugas both stated that the estimates of blood loss could have been underestimated, yet they were unable to identify any deficiencies in the manner in which the estimates were done nor could they point to any evidence suggesting excessive blood loss. The accepted way of estimating the blood loss by looking at surgical sponges, drapes, and canisters in the operating room carries with it a certain amount of subjectivity. Dr. Simitciu testified that just prior to the administration of general anaesthesiology around 2200h, she estimated the blood loss to be approximately 1000 mls. She looked at the sponges, their level of saturation, the suction machine, the amount of blood in the pockets around the drapes and she confirmed her assessment with Dr. Fleming, who undertook the same process. Dr. Yinon estimated the blood loss at 1200 mls while Dr. Fleming approximated it between 1000 mls and 1600 mls.

[214] Dr. Barrett testified that the “usual” blood loss for a Caesarian section is approximately 700-800 mls. Dr. Barrett stated that because of the extension and bleeding, Cindy’s blood loss would be more than the average but the estimates of the attending doctors are reasonable. I agree. I do not find any evidence that the estimates of the blood loss that were done by the Defendant doctors were inaccurate or underestimated. The blood loss estimates of 1000 cc’s and 1200 cc’s were charted contemporaneously and there was no evidence that the estimates were done improperly or that they were inaccurate. A speculation by the experts Dr. Lightheart and Dr. Dugas that perhaps the blood loss estimates were all inaccurate is not compelling or persuasive. I do not accept that the assessments of the blood loss done by the various treating doctors at the time of the surgery in the range of 1000-1600 mls could all be very wrong. Dr. Clark and Dr. Jaeger testified that a blood loss in that range is nowhere near enough to cause cardiac arrest in a healthy young woman; Dr. Clark stated that even if the blood loss was twice what was estimated, it would not have caused a cardiac arrest. The blood loss estimates done at the time do not support he theory that Cindy had lost a significant, life-threatening amount of blood.

[215] To accept the Plaintiffs’ theory on causation, I would have to find that the suturing performed by Dr. Yinon and Dr. Farine was not effective to stop the bleed, or that there was a “hidden” bleed somewhere else, and that Cindy lost massive amounts of blood which none of the attending doctors noticed, including the urologists who performed the cystoscopy. The evidence does not support that there was ongoing bleeding from the left uterine artery or anywhere else after 2142h.

[216] The doctors were clearly alive to the issue of blood loss, because there was a discussion about the possible need for a transfusion, following which the course of action was to obtain a hemoglobin count, which was a reasonable step to take.

[217] The hemoglobin reading that was done at 2227h and reported to be 99g/L is further confirmatory evidence that Cindy did not suffer extensive bleeding. It supports the estimates of blood loss done by the Defendant doctors. Dr. Clark, Dr. Barrett, Dr. Lightheart, Dr. Dugas and Dr. Jaeger all concurred that a hemoglobin of 99 g/L is consistent with the blood loss estimates of Dr. Simitciu and Dr. Yinon and was a finding that was reassuring.

[218] However, Dr. Lightheart and Dr. Dugas stated that the hemoglobin result was unreliable and was artificially high. They asserted that because Cindy had been given IV fluid replacement, equilibration must occur before a hemoglobin result can be viewed as an accurate indication of the blood loss in a patient. Cindy was given approximately 1000 cc’s of fluid before her epidural and another 2000 cc’s of fluid after that. Dr. Clark testified that Cindy would have been equilibrated by the time the sample was taken. Eventually, Dr. Lightheart and Dr. Dugas conceded during cross examination that the hemoglobin result was fairly accurate. See (Dr. Dugas’s transcript January 19 at p. 191).

[219] The experts were asked about the threshold hemoglobin result that would be indicative of the need for transfusion. It was common ground between the experts that the determination of whether a patient needed a blood transfusion was dependent on a variety of factors and required the exercise of clinical judgment. Dr. Dugas agreed that there are many healthy people who have a hemoglobin count of 70, while if a patient has a hemoglobin result around 70, with an active bleed and are volume depleted, they might require a transfusion. It depends on the circumstances.

[220] The blood for the hemoglobin result was taken at 2227h, a time when Cindy’s uterus was exteriorized and the urology team was in the operating room. None of them saw any active bleeding. As well, it took the urology team about 40 minutes to arrive in the OR and a further 50 minutes to perform the cystoscopy, so Cindy’s abdomen was open and if there was ongoing bleeding, there was ample time for the doctors to have noted it. Therefore, Dr. Dugas’s suggestion that the result was not reassuring because she had active bleeding is not supported in the evidence. I view Dr. Dugas’s opinion on the value of the hemoglobin result as speculative and unsupported on the evidence.

[221] In my view, there is no reason to doubt the accuracy of the hemoglobin reading and I do not find it to be a “false result” that ought not to have been relied on by the doctors. The Defendant doctors and the experts all concurred that a hemoglobin of 99 g/L is not indicative of the need for a blood transfusion. It confirms that Cindy had not experienced a blood loss that was significant enough to cause hemorrhagic shock or that was indicative of active bleeding; it was confirmatory of the estimates of blood loss done by the surgeons.

[222] In addition, Cindy’s hemoglobin result that was taken 45 minutes after her arrest was 94. She had received 2 units of packed red blood cells after the arrest. Dr. Barrett testified that the lowest Cindy’s hemoglobin could have been at the time of her arrest was 74, which is not a reading that mandates a transfusion. Dr. Barrett stated that to consider a transfusion, the hemoglobin must be below 70. Even so, a reading of 70 would not cause a cardiac arrest in a young, healthy woman.

[223] Dr. Dugas maintained that the focus cannot be solely on the hemoglobin result and I concur with that view. However, the other evidence also confirms there was no need for a blood transfusion for Cindy. At the time of the taking of the blood sample, 2227h, she was receiving fluids and her urine output was very good, which was indicative of good kidney function. Dr. Dugas agreed that kidneys are particularly sensitive to changes in blood volume and if there is a diminished perfusion to organs, then the kidneys are the first area to demonstrate it, through a diminished urine output. Dr. Dugas testified that Cindy had concentrated urine, which in his opinion was indicative of hemorrhagic shock. The notations in the chart do not support this contention; the nursing notes indicate that Cindy had clear, concentrated urine prior to her surgery, which means that her urine was in the same state prior to the loss of any blood and cannot be relied on as an indicator of Cindy being in hemorrhagic shock after blood loss, in my view. Her urine output as noted in the chart around 2130h-2300h was very good.

[224] The bloodwork that was done at 2205h showed Cindy was in the midst of massive DIC and that she was using up her clotting factors. The D-Dimer result of 35.2 was as high as the lab could measure and was evidence that the broken-up clots were travelling throughout Cindy’s body. Dr. Clark stated that with “simple” blood loss it would be impossible to have a D-Dimer reading greater than 35.2; it had to be caused by an active process of the consumption and dissolution of clots throughout the body and is indicative that by that point, Cindy was losing her ability to clot. Furthermore, while the fibrinogen level at 2205h could be seen as indicative of dilutional coagulopathy or consumptive coagulopathy, when taken together with the hemoglobin results, Dr. Clark stated it was clearly demonstrative of AFE. I accept his opinion on this issue, and find that it is compelling evidence that Cindy had AFE.

[225] Dr. Barrett concurred with the opinion of Dr. Clark. He testified that Cindy’s D-Dimer result was the highest he had ever seen and “with that high D-Dimer it tells you that the coagulation fibrinolytic system has gone haywire. The only thing that can do this so soon, within an hour, when there is not even ongoing blood loss, the only thing that can do that is AFE”. (transcript June 5, 2023 p. 244). Dr. Barrett testified that he was certain Cindy’s cardiac arrest was not caused by blood loss from her surgery; rather, it was caused by the consumptive coagulopathy arising from the AFE.

[226] Following Cindy’s arrest, the results noted in the chart at 0152h are indicative of an injury to her lung, which is a classic sign of AFE. Her oxygen saturation decreased although she was receiving oxygen. Dr. Clark stated that the injury to Cindy’s lung was very severe; her lung was unable to transfer oxygen to other organs. She had acute respiratory distress syndrome, which is another feature of AFE.

[227] Dr. Farine, Cindy’s treating obstetrical surgeon, is and was at the time, a very experienced obstetrician dealing with high-risk pregnancies. He was the head of the maternal-fetal unit at Mt. Sinai at the time of Cindy’s delivery and the hospital had one of the busiest obstetrical departments in Canada. While he was not called as an expert on the issue of causation, as the surgeon who was present at the time of these events, he was in a unique position to observe what transpired. His perspective is different than that of the experts retained by the parties for opinions.

[228] Dr. Farine testified that he formed the opinion that Cindy’s cardiac arrest was caused by an AFE and was not the result of a major bleed. He stated that AFE is a very rare event and he had not encountered one in his many years of practice, although he certainly knew what it was and what its presentation looked like.

[229] He was present when the uterus was exteriorized and he was confident that hemostasis had been achieved and there was no ongoing bleeding. Dr. Farine stated that after the uterus was put back in the abdomen, he checked again and there was no bleeding and he was adamant that if there was bleeding, he would have observed it. The hemoglobin reading of 99 was very good and was confirmatory of the fact there was no ongoing bleeding.

[230] After Cindy’s arrest and resuscitation, Dr. Farine performed an ultrasound on her abdomen and there was no fluid present at that time. In Dr. Farine’s view, that ruled out bleeding as a cause of Cindy’s cardiac arrest. Later in the morning, after the DIC caused Cindy’s abdomen to swell with fluid, he did a further ultrasound which demonstrated that her abdomen was full of blood. Dr. Farine was present for the surgery done by the ICU surgeon, Dr. Laframboise, and he saw that blood was pouring into Cindy abdomen from “everywhere”, even the areas that had been sutured. Dr. LaFramboise could not control the bleeding. As Dr. Farine commented, what he saw was not “surgical bleeding”; it was bleeding that was caused from DIC and was very different.

[231] In my view, that is a significant observation. In his experience as an obstetrician, Dr. Farine had encountered surgical hemorrhages and he was familiar with the type of blood loss that accompanies surgical bleeds. What Cindy experienced, according to Dr. Farine’s observations, was completely different and was not the result of bleeding from a surgical site. Rather, it was uncontrollable bleeding caused by a DIC, which is the result of an AFE.

[232] Approaching the causation analysis in the traditional fashion, I note that it is a fundamental principle of tort law that there must be a link between a negligent Defendant’s act and the harm suffered by the Plaintiff. To put it another way, a negligent Defendant is responsible only for the damage that he or she caused: Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.). Justice Sopinka noted in Snell at p. 326 that “Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”

[233] In determining issues of causation, the Court relies heavily on expert opinions. In that exercise, the judge must consider the expertise and experience of the expert proffering an opinion, the basis upon which the opinion is founded, as well as how they comported themselves in the witness box when determining the value of the expert opinion. No Rule 53 expert is in the same position as a Defendant who is a professional and was involved at the time of the events giving rise to the lawsuit. Of course, a named defendant is not impartial because they have an interest in the outcome of the case. However, the contemporaneous observations made by a defendant physician or nurse or other health care practitioner can be of great value to the trial judge, depending on the professional experience of the defendant, the ability to observe, the reliability of the recollections and how the defendant presented when giving evidence. In the instant case, I attach significant weight to the observations of Dr. Farine at the time of these events concerning the nature of the bleeding he observed initially from the uterine artery and later, after Cindy’s cardiac arrest. His recollections support the diagnosis of AFE, not a diagnosis of a surgical hemorrhage.

[234] I have found 3 breaches of the standard of care by Dr. Fleming: the failure to advise the surgeons of Cindy’s hemodynamic instability; the decision to leave the OR at 2320h when Cindy was unstable; and the failure of Dr. Simitciu to complete the Anaesthesiology Record, for which Dr. Fleming is responsible as her supervising specialist.

[235] The law of causation requires there to be a link between the defendant’s negligence, the breach of the standard of care, and the injuries suffered by the plaintiff. In the instant case, the question to be determined is but for the negligence of Dr. Fleming would Cindy have suffered the cardiac arrest? I agree that the “but for” test should be applied in a robust, pragmatic and common-sense fashion when determining causation.

[236] After considering the totality of the evidence, including the evidence of the various experts who testified, I find that Cindy’s cardiac arrest was due to an AFE which all of the experts agreed is exceedingly rare, cannot be predicted and cannot be prevented. There is no test to diagnose AFE nor is there any medication to treat it. There are no reliable risk factors for AFE and it is not preventable.

[237] Although I have found that Dr. Fleming breached the standard of care by failing to notify the surgeons of Cindy’s hemodynamic instability, I find that this breach had no impact on the outcome. Dr. Farine was very clear in his evidence that while he would have expected and preferred to have been advised of the status of his patient, knowing of her hemodynamic instability would not have affected his treatment decisions nor would it have changed the actions of the surgical team. I do not find that if surgical team had been provided with the information concerning Cindy’s status and the fact that she was being administered inotropes it would have changed the course of treatment of the surgeons.

[238] Cindy did not suffer a post-partum hemorrhage that went undetected by the attending physicians; she suffered an AFE with the associated DIC which led to a cardiac arrest. The fact that Dr. Fleming left the OR while Cindy was unstable and in shock played no role in the outcome, nor did the failure of Dr. Simitciu to properly fill out the chart. The experts, Dr. Lightheart, Dr. Clark, Dr. Barrett all concurred that when a patient suffers an AFE, there is little if anything that can be done to avoid its ravages. There is no causal relationship between the breaches of the standard of care I have found concerning Dr. Fleming and his resident and the heart attack suffered by Cindy.

[239] Because I have found that her cardiac arrest was not a result of blood loss, transfusing her at an earlier stage would not have prevented the cardiac arrest from occurring. Had Dr. Fleming not breached the standard of care by failing to inform the surgical team of Cindy’s hemodynamic instability during the surgery, had not left the OR after the surgery was complete and had ensured the resident completed the Anaesthesiology Record, it would have had absolutely no impact on Cindy’s outcome. She would still have suffered the AFE and resultant DIC and heart attack. That would not and could not have been prevented or altered by the tortious acts of Dr. Fleming and Dr. Simitciu. Causation has not been proven.

Limitation Period Issue

Background facts

[240] Following Cindy’s cardiac arrest on August 11, 2009, her parents met with a friend who was a personal injury lawyer, Mr. Robert Preszler. Through him, they retained Jerome Morse, an experienced medical malpractice lawyer, in September 2009 to act as counsel along with Mr. Preszler. Mr. Morse issued a statement of claim on August 5, 2011 alleging negligence against the hospital and the obstetrical team, including Dr. Farine, Dr. Yinon, and Dr. Kandasamy. While Cindy was named as a Plaintiff in the action, she was not represented by a litigation guardian in the claim, notwithstanding that she was clearly a party under disability. Her father, mother, daughter and husband were included as Plaintiffs advancing claims pursuant to the Family Law Act. Her mother, Helene Silverman, became the litigation guardian on July 6, 2016, when she signed the affidavit.

[241] Mr. Morse requested and received the records from Mt. Sinai Hospital in 2010. He received the antenatal records in 2011. He received the minutes from the meeting between Cindy’s family and the representatives from the hospital in February 2013. Mr. Morse retained Dr. Lightheart to provide an expert opinion on the obstetrical care in March 2010. She provided a written report in April 2011 in which she opined the obstetrical team was negligent and that Cindy suffered hemorrhagic shock as a result of the negligence. Dr. Lightheart recommended that an expert opinion from an anaesthesiologist be secured.

[242] Mr. Morse retained an expert in anaesthesiology in May 2011. Shortly thereafter, he received a verbal opinion that Dr. Fleming and Dr. Simitciu met the standard of care. The expert anaesthesiologist did not concur with Dr. Lightheart that Cindy’s heart attack was caused by hemorrhagic shock; rather, the expert was of the view that Cindy suffered an AFE. As a result, Mr. Morse did not include the anaesthesiologists, Dr. Fleming and Dr. Simitciu, as defendants in the first action.

[243] Later, in July 2014, while securing further expert opinions for the case, Mr. Morse retained another anaesthesiologist, Dr. Hollidge, who agreed to review the file and provide an opinion on standard of care. He received a verbal expert opinion from Dr. Hollidge on January 19, 2015 that the anaesthesiologists had not met the standard of care and that she did not believe Cindy suffered an AFE. Despite repeated requests, Dr. Hollidge did not provide a written report. On January 18, 2017, a second statement of claim was issued against Dr. Fleming and Dr. Simitciu alleging negligence in their care provided to Cindy. The Defendants in the second action took the position that the claim was statute-barred because it was commenced outside the 2-year limitation period. Subsequently, Dr. Hollidge advised Mr. Morse that she had left the country and was not prepared to testify should the matter go to trial.

[244] The Plaintiffs submit that the second action was not commenced out of time; rather, it was started within 2 years of Mr. Morse discovering through expert opinion in January 2015 that the anaesthesiologist Defendants had not met the standard of care. The claim was issued in January 2017, the day before the 2 year anniversary of counsel discovering the Plaintiff had a claim against Dr. Fleming and Dr. Simitciu. In addition, it is submitted that the limitation period did not begin to run until Cindy, a party under disability, was represented by a litigation guardian, which was in July 2016. Mr. Embury assumed the role of counsel for the Plaintiffs after the second statement of claim was issued and the Defendants pleaded the limitation period defence.

[245] It is not entirely clear to me why the issue of the limitation period was left to trial, but I understand the Defendants brought a summary judgment motion on the limitation issue in 2020 and that Mr. Morse swore an affidavit in response to the motion. He was cross examined on his affidavit in February 2021, but the motion did not proceed for reasons which were not explained to me. Counsel advised at the outset of the trial that they agreed that the issue of the limitation defence was to be determined by the trial judge. I granted Mr. Morse intervenor status to provide submissions on the issue of discoverability. His counsel provided written submissions and I heard his counsel’s oral argument as well.

Analysis

Issue of the failure to have Cindy represented by a litigation guardian at the time the statement of claim was issued

[246] It is not disputed that when the original claim was issued, there was no litigation guardian named to bring the action on behalf of Cindy, who was clearly a party under disability. Rule 7.01(1) requires that a proceeding be commenced on behalf of a party under disability by a litigation guardian. Section 7(1) of The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B states that a limitation period does not start to run against a party under disability until they are represented by a litigation guardian.

[247] The Rules of Civil Procedure require that a person who intends to act as litigation guardian file an affidavit with the court. In this case, the affidavit of litigation guardian was not executed by Helene Silverman until July 6, 2016. I agree with the comments of the Court of Appeal in Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at para. 34, that “[i]t would not make sense for the limitation period to be tolled simply because the person holding herself out as the litigation guardian had not filed the required affidavit under the Rules.”

[248] I find it unusual that the affidavit of litigation guardian was not signed at the time of the retainer of Mr. Morse so that the action could have been properly constituted in the Statement of Claim. It was clear from the outset that if a legal proceeding was being initiated, it would have to be brought by a litigation guardian because there was no question that Cindy was a party under disability. The evidence is clear that Mr. Morse was instructed to commence a claim for Cindy and her family. Certainly, Mrs. Silverman meets all the criteria to act as litigation guardian.

[249] In the cross-examination on his affidavit sworn February 2021, Mr. Morse stated that he had never met Mrs. Silverman and he was taking instructions from Mr. Preszler to issue a claim on behalf of Cindy and her family. In response to the question why an affidavit of litigation guardian was not executed at the time the statement of claim was issued, Mr. Morse said it was not necessary and stated, “We do it all the time. It’s an irregularity and if there’s a need to get around to doing something about it, you do something about it. But we issue these claims all the time without that step.” Mr. Morse stated that it was his usual practice to deal with an incompetent person’s representation “in due course”.

[250] I do not find that Mr. Morse’s practice as described during his cross-examination was reasonable in this case. It might be appropriate in a case with a person who was incompetent and who had no relatives or anyone to act as litigation guardian with an approaching limitation period. However, in a case where the injured Plaintiff’s disability was obvious from the outset, and where she had several relatives who could act as litigation guardian, it is difficult to understand why the claim would have been issued without naming a litigation guardian. The Rules are clear: parties under disability are to be represented by a litigation guardian.

[251] I do not find that it is appropriate to delay adding a litigation guardian when there is no reason to do so, and then appoint a litigation guardian “in due course.” Limitation periods govern the timing for issuing claims and to provide some certainty to parties. If counsel fail to follow the procedure as set out in the Rules for commencing claims on behalf of parties under disability, and then rely on the date of the signing of the affidavit of litigation guardian to extend the limitation period, that defeats the purpose of limitation periods. If that were the case, plaintiff counsel would have little incentive to name a litigation guardian when a statement of claim was issued. Instead, it would be advantageous for counsel not to comply with Rule 7, not to have the party under disability represented by a litigation guardian, and then argue that the limitation period is extended by reason of their own failure to comply with the Rules. That is not the intent of Rule 7, nor is it the intent of the Limitations Act. The original claim should have included Cindy’s mother as litigation guardian. I would not extend the commencement of the limitation period solely on the basis that the affidavit of the litigation guardian was not signed until July 2016.

Issue of whether the limitation period is extended because the claims against the anaesthesiologists were not discoverable until later

[252] Certain facts are not in dispute. There was a meeting shortly after the events giving rise to these lawsuits; on September 23, 2009, there was a meeting at the hospital which included some of the Plaintiffs and some representatives of the hospital and a couple of treating doctors. No lawyers attended that meeting. The cause of Cindy’s cardiac arrest was not provided to the Plaintiffs at that meeting.

[253] Mr. Morse was contacted by the referring counsel, Robert Preszler, in September 2009 with respect to commencing an action in negligence on behalf of Cindy. Mr. Morse is an experienced advocate and has acted as counsel for many plaintiffs in medical negligence actions. His practice as detailed in his evidence is to obtain the medical records from the event, and then to secure expert opinions on the standard of care issues and on the causation issues.

[254] The hospital records from Mt. Sinai were received in early 2010 and in March 2010, Mr. Morse retained the expert obstetrician Dr. Lightheart. She provided a written report in April 2011 and stated that the obstetricians failed to meet the standard of care, and this resulted in hemorrhagic shock. She recommended an anaesthesiologist review the chart and Mr. Morse retained one in May 2011. Subsequently, this expert anaesthesiologist provided Mr. Morse with a verbal opinion that the standard of care was met by Dr. Fleming and Dr. Simitciu. This expert offered the opinion that the cause of Cindy’s heart attack was an AFE. I find that by contacting experts in March 2010, Mr. Morse took early steps to investigate the liability of the Defendants.

[255] As a result, Mr. Morse issued a statement of claim in August 2011 against the hospital and the obstetrical team who had provided care to Cindy. There was no litigation guardian named in the action, to bring the claim on behalf of Cindy, who was clearly a party under disability.

[256] Mr. Morse had the opinion from Dr. Lightheart supporting negligence against the obstetricians and a verbal opinion from an anesthetist not supportive of negligence against the anaesthesiologists. After issuing the claim and receiving statements of defence, he contacted Dr. Lightheart in March 2014 and received the name of Dr. Hollidge, an anaesthesiologist. A letter was sent to Dr. Hollidge on July 9, 2014 asking for an opinion on both standard of care and causation concerning the anaesthesiologists.

[257] On January 19, 2015, Mr. Morse spoke to Dr. Hollidge who offered the opinion that Cindy had suffered an AFE; further, Dr. Hollidge believed the anaesthesiologists fell below the standard of care in their provision of care to Cindy. On the evidence, this was the first time that Mr. Morse had an expert provide the opinion that Dr. Fleming and Dr. Simitciu were negligent.

[258] Although Mr. Morse wrote many times in 2016 and 2017 asking Dr. Hollidge to send her written report containing her opinion, she never did. She advised Mr. Morse in February 2018 that she had moved out of the country and was no longer prepared to be an expert witness in the case. On January 18, 2017, the second statement of claim was issued naming the anaesthesiologists Dr. Fleming and Dr. Simitciu as defendants. Mr. Morse argues that the claim was issued within 2 years of the claim against the anaesthesiologists becoming “discoverable”.

[259] The claim against Dr. Fleming and Dr. Simitciu was not commenced within the 2-year limitation period in the Limitations Act, 2002. The issue for my determination is whether the claims against the anaesthesiologists were only discoverable when Mr. Morse received an expert opinion that they breached the standard of care and their negligence caused Cindy’s injuries.

[260] The law is clear that a Plaintiff must act with diligence in order to rely on the doctrine of discoverability. A Plaintiff cannot sit back, issue a claim beyond the 2-year period, and then rely on the discoverability doctrine to save their claim: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246. To determine if a Plaintiff has acted reasonably in determining whether they have a claim, the nature of the alleged claim and the circumstances of the Plaintiff must be examined: Longo.

[261] Section 5(1) of the Limitations Act sets out the definition of discoverability of a claim:

A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss of damages had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act of omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[262] To summarize, the doctrine of discoverability states that a limitation period doesn’t start to run until the material facts of a claim have been discovered or ought to have been discovered through the exercise of reasonable diligence: Zapfe v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397 (C.A.). Discoverability may relate to knowing the parties against whom a person might have a claim, for example, the driver who caused an accident and fled the scene. Discoverability can also include actions of a person giving rise to a claim in negligence and that the negligent act(s) caused damage.

[263] Section 7(1) of the Limitations Act states that limitation periods will not run against an incapable party during the time in which they are unrepresented by a litigation guardian.

[264] Looking at the particular facts of the case before me, this is a medically complex case, to be distinguished from other medical negligence cases that are not complicated. What transpired with the labour and delivery of Cindy in August 2009 was unexpected and highly unusual. While counsel for the Defendants argue that Mr. Morse was in receipt of the full hospital records by August 2010 and therefore had the material facts giving rise to the negligence claims at that time, I do not accept this submission. In many cases involving labour and delivery, the baby is born compromised, and this gives rise to the claims for damages based on allegations of negligence during the labour and delivery of the child.

[265] However, in the instant case, the baby was delivered, and he was fine, with normal Apgar scores. There was no suggestion of negligence during the labour of Cindy or with the decision to proceed with a Caesarian section delivery. Subsequently, the doctors encountered some bleeding from a ureter, which was sutured. Urologists conducted further testing and confirmed there was no damage to other organs, and Cindy’s abdomen was closed. The physicians were in the process of readying Cindy for transfer out of the operating room when the cardiac arrest occurred. At the time of these events, there was no clear explanation for what transpired with Cindy. What was evident was that Cindy had suffered catastrophic injuries.

[266] In my view, Mr. Morse was diligent in pursing initial expert opinions and he was prudent in his approach to the case. He received the expert opinion from the obstetrician Dr. Lightheart in April 2011 which confirmed that there was an arguable case against the obstetrical team on the basis of a breach of the standard of care. Mr. Morse also had the expert opinion from Dr. Lightheart that the cardiac arrest was caused by hemorrhagic shock because of bleeding.

[267] On Dr. Lightheart’s recommendation, Mr. Morse then sought an opinion on the actions of the anaesthesiologists. In May 2011, he was advised by the expert he had retained that the anaesthesiologists met the standard of care. This expert disagreed with Dr. Lightheart on the causation issue.

[268] I do not find that in August 2011, based on the expert opinions he had received at that point Mr. Morse ought to have included Dr. Fleming and Dr. Simitciu as defendants in the action. The practice of including as a defendant every physician or nurse who rendered care to a patient is not appropriate and is not the standard for a lawyer practising in the medical negligence field.

[269] Certainly, if a doctor is implicated on the facts of a case, that physician should be included when a claim is initiated. I agree that if there is a question about the role played by a physician or nurse, they ought to be included in the claim and if it becomes clear as the lawsuit proceeds that he or she played no role in the outcome, the claim can be dismissed against that individual.

[270] I do not, however, accept the Defendants’ submission that as of August 2009, the Plaintiffs had the material facts to support claims against Dr. Fleming and Dr. Simitciu. At that point, it was clear that Cindy had suffered catastrophic injuries, but it was far from clear why she had the outcome or who was responsible for it. To the contrary, no one had suggested to the family or to Mr. Morse that the anaesthesiologists were negligent or that anything they did caused harm to Cindy.

[271] I agree that a Plaintiff cannot “[sit] idle and take no steps to investigate” a possible claim: Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 23. However, that is not what occurred here. After commencing the 2011 claim, Mr. Morse continued to prepare the case for the next stage, examinations for discovery, and it was as part of that process that he consulted another anaesthesiologist who eventually provided him with a different opinion on the actions of Dr. Fleming and Dr. Simitciu.

[272] At the time that the 2-year period was up, in August 2011, he had received no expert opinion suggesting Dr. Fleming and Dr. Simitciu were negligent; to the contrary, the opinion he had was that their actions met the standard of care. The verbal opinion from the anaesthesiologist was that the cause of Cindy’s cardiac arrest was an AFE. In these circumstances, his initial decision to include only the obstetrical team and the hospital as defendants was reasonable. In my view, he acted prudently to investigate the issues of breach of standard of care and causation.

[273] I do not see the McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.R. (3d) 304 (C.A.) relied on by the defence as applicable to the case before me. McSween involved a plaintiff who suffered burns during surgery and the court noted that the plaintiff suffered an unexpected, obvious injury during surgery and since the surgeon was the person who conducted the surgery, he ought to have been included as a defendant in a claim issued during the 2-year limitation period. Receiving burns during straightforward surgery is very different than the facts of the case before me and consequently, I find the reasoning in McSween of little assistance.

[274] Instead, I find the Joshi v. Dhada et al., 2022 ONSC 4910 to be more relevant. In that case, Justice Glustein considered, in the context of a motion for summary judgment, the applicable limitation period in a medical negligence claim arising from a baby born with serious impairments. In that decision, Justice Glustein commented at para. 80 that “[i]n circumstances where a plaintiff does not ‘sit idle’ but instead ‘take[s] steps to investigate the matters referred to in s. 5(1)(a),’ the limitation period may be tolled after it has started running if the Plaintiff reasonably relies on the facts learned from due diligence to conclude that there is no plausible inference of liability.” In my view, that is applicable to the facts of the instant case.

[275] From time of these events in August 2009 up to the time of trial, there has not been a clear answer as to what transpired during Cindy’s labour and delivery. When the family had a meeting with the care providers in September 2009, they were advised by the hospital and by at least one of the physicians involved in Cindy’s care that the cause of her arrest was unknown. I do not agree that by August 2011 there was “a plausible inference of liability” on the part of the anaesthesiologists that Mr. Morse could have or should have drawn: Grant Thornton LLP v New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, at para. 3.

[276] Instead, Mr. Morse had an opinion from Dr. Lightheart that Cindy suffered a bleed and the surgical team was negligent. He also was in receipt of a verbal opinion that the anaesthesiologists had provided treatment that met the standard of care. I find that it was reasonable for Mr. Morse to rely on that opinion and not include Dr. Fleming or Dr. Simitciu in the 2011 statement of claim. The standard of care for a prudent practitioner in a medical negligence case does not require the inclusion of doctors for whom counsel has only opinions supportive of the care provided.

[277] The record demonstrates that it was not until January 19, 2015 when Mr. Morse spoke to another expert, Dr. Hollidge, who expressed the opinion that the anaesthesiology care fell below the applicable standard that the case against Dr. Fleming and Dr. Simitciu was discoverable, and consequently, that the limitation period commenced. The claim against these two doctors was issued on January 18, 2017, within the limitation period. I note that the practice of issuing a statement of claim the day before the expiry of the limitation period is one to be discouraged.

[278] The Defendants submit that even if I find the limitation period was tolled, the FLA claims of the family are statute-barred. I do not accept this submission. Claims for damages pursuant to the FLA arise from the entitlement to claim for a principal claimant who has been injured. FLA claims have often been referred to as “derivative claims” because they are dependent on the success of the claim of the main, injured Plaintiff. I do not find the Giroux v. Pollesel 2012 ONSC 2203, 111 O.R. (3d) 149 (Div. Ct.) relied on by the Defendants to be of particular assistance to the case before me. The Divisional Court was asked to determine whether the limitation period applicable to an FLA claimant could start to run at a different time than the limitation period for the main claimant. However, in that case the Court considered an action where the principal claim was statute-barred and whether the FLA claims also became statute-barred. In the case at hand, I have not found Cindy’s claim against the anaesthesiologists is statute-barred so the issue of the FLA claims is moot. It cannot be the case that the FLA claims of Cindy’s family are statute-barred while her damage claims are permitted to proceed. The discoverability analysis that I have considered with respect to Cindy’s claims is equally applicable to the claims asserted pursuant to the FLA, which are deriviative claims arising from Cindy’s injuries.

Conclusion

[279] The claims are dismissed. If counsel cannot agree on costs, they are directed to request a case conference with me.

[280] I am grateful to counsel for their excellent advocacy in the presentation of the case. This was a case that was hard fought on both sides, as it had to be, given the nature of the action. The fact that counsel comported themselves in the best traditions of advocates was greatly appreciated by the Court.

Darla A. Wilson

Released: January 29, 2024

APPENDIX “A”

Hypotension: low blood pressure when the systolic reading is less than 90.

Shock: decreased blood pressure with increased heart rate and decreased perfusion to tissues.

Hypovolemic shock: occurs when the blood volume is low and not sufficient to support the organs.

Tachycardia: a high heart rate greater than 100.

Hemodynamically unstable: this occurs when blood pressure drops and heart rate increases.

Hemorrhagic shock: shock resulting from bleeding, characterized by hypotension, tachycardia, and oliguria.

Inotrope: medication given to raise the cardiac output to ensure blood is pumped throughout the body, such as phenylephrine or epinephrine.

Hemostasis: stopping the bleeding.

Amniotic Fluid Embolism (AFE): this occurs when fetal tissue enters the circulatory system of the mother, usually through a laceration, and causes an overwhelming rejection reaction in the mother, and often leads to cardiac arrest and death.

Acidemia: this occurs when tissues do not get adequate perfusion and there is an increase in hydrogen ion concentration in the blood and a decrease in the pH.

Disseminated Intravascular Coagulopathy or (“DIC”): a process in which a foreign substance enters the bloodstream and starts an uncontrolled cycle of clotting and dissolution of clots through the body which results in the clotting factors being used up so the patient bleeds from everywhere, from vessels as well as from surfaces, due to the inability to clot.