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Summary

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Torts Negligence Medical malpractice Causation Trial judge finding respondent obstetrician liable for infant appellant’s injuries Whether the Court of Appeal misinterpreted Snell v. Farrell, [1990] 2 S.C.R. 311, in holding that the trial judge was not permitted to draw an inference of causation, because both parties had led expert evidence on the issue Whether the Court of Appeal erred in holding that there were insufficient findings and evidence to support an inference that the respondent’s breaches of the standard of care caused the appellant’s injuries Alternatively, whether the Court of Appeal misapprehended the “but for” test in holding that the plaintiff bore the legal burden of proving the threshold issue that the respondent’s application of the forceps was a cause of the bradycardia Alternatively, whether the Court of Appeal misapprehended the burden of proof of factual causation when it refused to apply recognized exceptions to the “but for” test in circumstances where the trial judge found that it was not possible to establish with precision the causal mechanism of cord compression resulting in the appellant’s bradycardia, and found that the appellant’s mother would likely not have consented to the mid forceps procedure had she been properly informed of the material risks of injury.

The appellant sued the respondent, Dr. Johnston, an obstetrician and gynaecologist, for damages arising from serious injury during her birth. The appellant sued through her mother, Carolyn Ediger. Late in Mrs. Ediger’s labour, Dr. Johnston attempted a rotational "mid level" forceps procedure to assist the delivery, but was unable to place the forceps satisfactorily. Shortly after he abandoned the procedure, the appellant’s heart action slowed in a bradycardia which deprived her of necessary oxygen, and persisted until she was delivered by Caesarean section and resuscitated approximately eighteen minutes later, causing severe brain damage which is permanent. The trial judge concluded that Dr. Johnston breached the standard of care in attempting a rotational mid forceps delivery without first checking on the availability of back up for Caesarean section delivery if necessary. Despite what she found to have been an interlude of between one and two minutes after the forceps attempt and before the onset of the bradycardia, the trial judge concluded that the evidence was sufficient to establish that the one caused the other. She concluded as well that the appellant had also proven her claim based on the absence of Mrs. Ediger’s informed consent to the forceps procedure before the appellant’s birth. Dr. Johnston appealed the finding of liability on the issue of causation only. The Court of Appeal allowed the appeal and dismissed the action.

Lower Court Rulings