SCC Grants Leave to Appeal in Medical Negligence Case on Causation
The Supreme Court of Canada has granted leave to appeal in Ediger v. Johnston, a medical negligence case that addresses the test for factual and legal causation.
In Ediger, an infant suffered acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) during delivery. The injury was caused by compression of the umbilical cord. The asphyxia in turn caused a deceleration in the fetal heart rate (fetal bradycardia), which persisted until delivery. Upon delivery, the infant was non-responsive and severely brain damaged.
The obstetrician had attempted a mid-level rotational forceps delivery, which would rotate the baby’s head from its sideways position to the anterior-posterior position (face down) for delivery through the birth canal. The plaintiffs’ position was that the standard of care required that a mid-level forceps delivery be attempted with a “double set-up”, i.e. in a high risk delivery suite or operating room with a dedicated surgical team. Alternatively, the plaintiffs argued that the standard of care required a mid-level forceps delivery to be attempted with a dedicated surgical team being “immediately available” at the hospital in the event that an emergency Caesarian section was required. The trial judge found that the standard of care was the “immediately available” standard.
The plaintiffs’ position on causation was that the attempted forceps delivery created a space in which the cord slipped, resulting in cord compression and attendant fetal bradycardia. The defence argued that this was impossible, since the fetal heart rate had dropped one to two minutes after the obstetrician had left the delivery room. All of the experts agreed at trial that fetal bradycardia would occur within seconds of cord compression. Furthermore, the experts agreed that cord compression could occur for reasons unrelated to a mid-level rotational forceps delivery.
The evidence regarding the timing of events was disputed. The trial judge accepted the evidence of the family physician that assisted the obstetrician with the delivery. The family physician testified that both forceps blades were applied to the baby’s head, that the obstetrician advised her that he was not happy with the placement of the second blade, and then at that point, he abandoned the procedure, elected to proceed with a Caesarian section and left the labour room to make the necessary arrangements. The family physician testified that the obstetrician was gone a couple of minutes, during which time she heard and then saw the fetal heart rate drop. She then called out to the obstetrician for an emergency Caesarean section, which occurred shortly thereafter.
The trial judge was not able to answer whether the attempted forceps delivery caused the cord compression. However, she concluded that the obstetrician’s actions had caused the baby’s injuries because of the close proximity in time between his attempt and the onset of the fetal bradycardia. Furthermore, she held that the respondent had breached the applicable standard of care in failing to have a back-up surgical team “immediately available” and in failing to obtain the mother’s informed consent for the mid-level rotational forceps delivery, which would have prevented brain damage from occurring.
The Court of Appeal held that the trial judge erred in her analysis of causation. The plaintiffs had failed to demonstrate that the attempted forceps delivery caused cord compression and the attendant fetal bradycardia. The trial judge’s conclusion that the attempted forceps delivery caused the cord compression and attendant bradycardia was not supported by the evidence of the family physician on which she relied and therefore resulted in a palpable and overriding error. Furthermore, even if a back-up surgical team had been immediately available or the mother’s informed consent had been obtained, there was no expert evidence to demonstrate that the baby would have been delivered before irreversible brain damage occurred.
In concluding that the trial judge erred in causation, the Court of Appeal applied the but-for test of causation. The material contribution test was said to be inapplicable. Following Resurfice v. Hanke, the “material contribution” test of causation applies only where it is impossible on the but-for test to prove that the defendant’s negligent conduct caused the plaintiff’s injuries. Furthermore, it was not sufficient for the plaintiffs to rely on a “common sense inference” of causation. The common sense inference did not apply where both parties had led expert evidence on the issues of causation. In this case, the obstetrician led evidence on alternative causes of cord compression other than mid-level rotational forceps delivery and the trial judge accepted that cord compression could result from other causes, including a kink in the cord or a nuchal cord, or unknown reasons.
Furthermore, the Court of Appeal held that the plaintiffs had failed to establish legal causation. The plaintiffs argued at trial that regardless of how the cord compression was caused, had a back-up surgical team been available (as the standard of care required), then the baby’s injuries could have been averted. The Court held that legal causation requires a “substantial connection” between the injuries and the alleged negligent act; in other words, the injuries alleged must be “within the risk” or “within the range” of harm created by the negligent conduct as opposed to having been created by a “totally different hazard”. If the obstetrician’s attempted forceps procedure did not cause the bradycardia, then the injuries could not be said to have been “within the risk” of that procedure.
It remains to be seen whether the Supreme Court of Canada will uphold the Court of Appeal’s reasoning on causation in this medical negligence case.
Supreme Court Docket: 34408
Date of leave granted: February 23, 2012
mid-level forceps delivery severe hypoxia-ischemic encephalopathy Supreme Court of Canada test for fact and legal causation