Brito v. Woolley et al., (2003) 185 B.C.A.C. 1 (CA)

• Judge: Esson, Rowles and Donald, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 03, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 185 B.C.A.C. 1 (CA);2003 BCCA 397

Brito v. Woolley (2003), 185 B.C.A.C. 1 (CA);

    303 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. JL.051

Elliott Neal Pawliuk Brito, an infant by his Guardian Ad Litem, Rosemary Pawliuk, and Rosemary Pawliuk (appellants/plaintiffs) v. Dr. Harold Ewart Woolley and Dr. Shelley Ross (respondents/defendants) and Nurse Susan Omstead, Nurse Bente Pedersen and Burnaby Hospital (respondents/defendants)

(CA028957; 2003 BCCA 397)

Indexed As: Brito v. Woolley et al.

British Columbia Court of Appeal

Esson, Rowles and Donald, JJ.A.

July 3, 2003.

Summary:

Pawliuk was pregnant with twins. During delivery, one of the twins suffered brain damage when his umbilical cord prolapsed and became completely compressed, cutting off his oxygen supply. The infant had cer­ebral palsy which had rendered him non-verbal, spastic and quadriplegic. Pawliuk and the infant (the plaintiffs) sued the doc­tors, nurses and the hospital involved, alleg­ing negligence.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 1178, dismissed the action and provisionally assessed damages. The plaintiffs appealed. The defendant doctors cross-appealed the provisional damages assessment.

The British Columbia Court of Appeal dismissed the appeal. The court held that it was unnecessary to deal with the cross-appeal.

Medicine - Topic 3048

Relation with patient - Consent to treat­ment - Negligence or fault - Duty of the treating doctor to inform patient - Pawliuk was pregnant with twins - During a vag­inal delivery, the second twin suffered brain damage when his umbilical cord prolapsed and became completely com­pressed, cut­ting off his oxygen supply - Pawliuk and the infant sued the doctors, alleging that they failed to inform Pawliuk of the material risk to a second twin of cord prolapse during vaginal delivery and of the option of cesarean section - The British Columbia Court of Appeal held that although the risk of cord prolapse was low (1 to 3%), it had potential for cata­strophic consequences and, therefore, constituted a material risk requiring dis­closure - How­ever, the failure to disclose did not cause or contribute to the injury - Even if Pawliuk had been informed of the risk, she would have chosen a vaginal delivery because the risk of catastrophe was low and the doctors had recommended vaginal delivery as being best for the babies - See paragraphs 23 to 47.

Medicine - Topic 3048

Relation with patient - Consent to treat­ment - Negligence or fault - Duty of the treating doctor to inform patient - The British Columbia Court of Appeal stated that "The common practice of doctors in a given area provides useful evidence of the standard of care in the treatment of a patient, but it offers little assistance in deciding whether a risk is material such that it must be disclosed. That question is to be determined according to a legal test, not by a consensus of medical views. To do otherwise would mark a return to the paternalism that the courts have clearly rejected." - See paragraph 36.

Medicine - Topic 3050

Relation with patient - Consent to treat­ment - Negligence - Causation - [See first Medicine - Topic 3048 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See both Medicine - Topic 3048 ].

Medicine - Topic 4260

Liability of practitioners - Negligence or fault - Defences - Approved practice - [See second Medicine - Topic 3048 ].

Medicine - Topic 6864

Nurses - Negligence - Patient care - Stan­dard of care - Pawliuk was pregnant with twins - During induced labour, feotal heart monitors were attached for the babies - The monitors were turned off for approxi­mately 27 minutes, probably because Pawliuk went to the washroom - The principal care nurse left Pawliuk un­attended during that time - During birth, one of the twins suffered brain damage when his umbilical cord prolapsed and became completely compressed, cutting off his oxygen supply - The trial judge held that leaving Pawliuk unattended for a lengthy period of time breached the stan­dard of care expected of the nurse - How­ever, the breach did not cause or contrib­ute to the baby's injuries - The British Colum­bia Court of Appeal affirmed the trial judge's decision - See paragraphs 48 and 49.

Medicine - Topic 6866

Nurses - Negligence - Patient care - Negli­gent care - [See Medicine - Topic 6864 ].

Cases Noticed:

Lepp v. Hopp, [1980] 2 S.C.R. 192; 32 N.R. 145, refd to. [para. 19].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 25].

Rawlings v. Lindsay (1982), 20 C.C.L.T. 301 (B.C.S.C.), refd to. [para. 32].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 33].

Mason v. Forgie (1986), 73 N.B.R.(2d) 193; 184 A.P.R. 193; 30 D.L.R.(4th) 548 (C.A.), refd to. [para. 33].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637 (C.A.), refd to. [para. 33].

Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 37].

Malette v. Shulman (1990), 37 O.A.C. 281; 67 D.L.R.(4th) 321 (C.A.), refd to. [para. 38].

Counsel:

N.H. Smith, Q.C., and L.A. Wong, for the appellants;

C.E. Hinkson, Q.C., and K.P. Serne, for the respon­dents, Drs. Woolley and Ross;

C.J. Grauer, for the respon­dents, Nurses Omstead, Pedersen and Burnaby Hospi­tal.

This matter was heard on May 1 and 2, 2003, at Vancouver, British Columbia, by Esson, Rowles and Donald, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the follow­ing decision for the court on July 3, 2003.