Ediger v. Johnston et al., (2013) 442 N.R. 105 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Citation: (2013), 442 N.R. 105 (SCC),2013 SCC 18,356 DLR (4th) 575,[2013] ACS no 18,442 NR 105,[2013] 2 SCR 98,[2013] SCJ No 18 (QL)
• Date: 04 December 2012

Ediger v. Johnston (2013), 442 N.R. 105 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. AP.006

Cassidy Alexis Ediger, an infant by her Guardian Ad Litem, Carolyn Grace Ediger (appellant) v. William G. Johnston (respondent)

(34408; 2013 SCC 18; 2013 CSC 18)

Indexed As: Ediger v. Johnston et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

April 4, 2013.

Summary:

Cassidy Ediger, now 15 years old, suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy. Cassidy, by her guardian ad litem, sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from negligence associated with an attempt to deliver her using a mid-level forceps procedure.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 386, found that Dr. Johnston breached the standard of care expected of him by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by Caesarean section upon complications arising from the mid-level forceps delivery, and by failing to inform Cassidy's mother about the material risks associated with the forceps procedure. The court also found that Cassidy had established causation. The court awarded Cassidy $3,224,000 in damages. Dr. Johnston appealed, challenging only whether his breaches of the standard of care had caused Cassidy's injury. The parties also cross-appealed on the damages award.

The British Columbia Court of Appeal, in a decision reported at (2011), 305 B.C.A.C. 271; 515 W.A.C. 271, allowed Dr. Johnston's appeal. The court held that the trial judge erred in finding that Dr. Johnston's breaches caused Cassidy's injury . The court dismissed the action without considering the appeal and cross-appeal as to the damages award. Cassidy appealed. The sole issue was whether Dr. Johnston's breaches of the standard of care caused Cassidy's injury.

The Supreme Court of Canada allowed the appeal. The court held that the trial judge did not err by finding that Dr. Johnston's failure to have surgical back-up immediately available before attempting the mid-level forceps procedure caused Cassidy's injury. It followed that there was no basis to interfere with the trial judge's finding of liability. The matter was remitted to the Court of Appeal to consider the appeal and cross-appeal on the trial judge's damages award.

Medicine - Topic 3050

Relation with patient - Consent to treatment - Negligence - Causation - [See fourth Medicine - Topic 4241.2 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy - Cassidy sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from negligence associated with an attempt to deliver her using a mid-level forceps procedure - The trial judge found that Dr. Johnston breached the standard of care expected of him by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by Caesarean section upon complications arising from the mid-level forceps delivery and by failing to inform Cassidy's mother about the material risks associated with the forceps procedure - The judge also found that Cassidy had established causation - The British Columbia Court of Appeal allowed Dr. Johnston's appeal, holding that the trial judge erred in finding that Dr. Johnston's breaches caused Cassidy's injury - The trial judge had concluded that it was more likely than not that Cassidy's umbilical cord became obstructed when it was compressed as a result of the forceps procedure - According to the Court of Appeal, the evidence showed that if Dr. Johnston's attempted forceps delivery had caused the cord compression, fetal bradycardia would have occurred almost contemporaneously with the forceps procedure - That could not be reconciled with the trial judge's finding that the bradycardia began "within at most one and two minutes" of the forceps attempt - In the Court of Appeal's view, this was a critical finding of fact that had to be addressed by the trial judge - The Supreme Court of Canada allowed Cassidy's appeal - The trial judge did not err by concluding that Dr. Johnston's attempted forceps delivery caused the persistent bradycardia - The trial judge accepted the "displacement" theory as an explanation for how Cassidy's cord became obstructed - The "displacement" theory explained the gap in time between the forceps attempt and the cord compression - The trial judge thus addressed how the forceps attempt could have caused the umbilical cord obstruction notwithstanding the gap in time between the procedure and the onset of bradycardia - The Court of Appeal was incorrect to find that the trial judge's findings were inconsistent - See paragraphs 30 to 35.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy - Cassidy sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from negligence associated with an attempt to deliver her using a mid-level forceps procedure - The trial judge found that Dr. Johnston breached the standard of care expected of him by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by Caesarean section upon complications arising from the mid-level forceps delivery - The judge also found that Cassidy had established causation - The Supreme Court of Canada held that the trial judge did not err by concluding that Dr. Johnston's attempted forceps delivery caused the persistent bradycardia - The trial judge concluded that, although she could not be certain of the precise mechanics leading to cord compression, "[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia" - There was no palpable and overriding error in that conclusion - It was open to the trial judge to accept Drs. Shone's and Farquharson's testimony regarding the displacement theory over Dr. Johnston's testimony - It was also open to her to conclude that the close proximity in time between the forceps attempt and the bradycardia, combined with the well-recognized risk of bradycardia associated with mid-level forceps deliveries, supported a finding of causation - See paragraphs 36 to 40.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy - Cassidy sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from negligence associated with an attempt to deliver her using a mid-level forceps procedure - The trial judge found that Dr. Johnston breached the standard of care expected of him by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by Caesarean section upon complications arising from the mid-level forceps delivery - At issue was whether the judge erred in finding that Cassidy had also established causation - Dr. Johnston conceded that had he delivered Cassidy within 10 minutes, her injury could have been completely avoided - However, he argued that the anaesthetist's presence alone would not have made a difference in the time it took to deliver Cassidy - The delivery would still have taken 18 minutes from the onset of bradycardia and, thus, Cassidy's injury would not have been avoided and Cassidy therefore failed to establish that the failure to have the anaesthetist standing by caused her injury - The Supreme Court of Canada held that the trial judge made no error in finding that Dr. Johnston's failure to have back-up surgical staff immediately available caused Cassidy's injury - Dr. Johnston read the trial judge's reasons to say, in response to the risk of bradycardia, that he was required to have an anaesthetist standing by - The "immediately available" standard of care endorsed by the trial judge required that the attending physician take precautions that were responsive to the risk of persistent fetal bradycardia resulting from the mid-level forceps procedure - She considered the availability of an anaesthetist to be a component of the broader duty to have surgical back-up immediately available - Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that resulted if bradycardia persisted for more than 10 minutes - As Dr. Johnston failed to take those precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge's causation finding was sound - See paragraphs 41 to 53.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered from persistent bradycardia during her birth that caused severe and permanent brain damage, leaving her with spastic quadriplegia and cerebral palsy - Cassidy sued Dr. Johnston, the obstetrician who delivered her, alleging that her injury resulted from negligence associated with an attempt to deliver her using a mid-level forceps procedure - The trial judge found that Dr. Johnston breached the standard of care expected of him by failing to ensure that back-up surgical staff would be immediately available to deliver Cassidy by Caesarean section upon complications arising from the mid-level forceps delivery and by failing to inform Cassidy's mother about the material risks associated with the forceps procedure - At issue was whether the judge erred in finding that Cassidy had also established causation - The Supreme Court of Canada stated that, having upheld the trial judge's finding that Dr. Johnston's breach of the duty to have surgical back-up immediately available caused Cassidy's injury, it need not consider whether Dr. Johnston's breach of the duty to obtain Mrs. Ediger's informed consent caused Cassidy's injury - However, the court stated that the trial judge's informed consent analysis further confirmed the implausibility of the "immediately available" standard advanced by Dr. Johnston - The court stated that "under Dr. Johnston's version of the 'immediately available' standard of care, it would not have been possible to deliver Cassidy in less than 18 to 20 minutes, thereby making severe brain damage a virtual certainty upon realization of the risk of bradycardia. If such injury were a virtual certainty, Dr. Johnston's duty to obtain informed consent would have included the duty to advise Mrs. Ediger that proceeding with the mid-level forceps delivery included the risk of bradycardia, and that in the event that that risk materialized, her baby would necessarily be born with severe and permanent brain damage because of the time required to arrange for surgical back-up. Alternatively, she could proceed with a C-section, which primarily poses risks to the mother. If Dr. Johnston were correct about the standard of care, we are confident that the trial judge - who recognized that Mrs. Ediger's 'primary concern' was the health of her baby and found 'no doubt' that 'Mrs. Ediger would have undertaken a risk to herself in order to avoid a risk to the baby' - would have concluded that Mrs. Ediger would have foregone the forceps delivery and opted instead for a C-section. In that case, there would have been no mid-level forceps attempt, no resulting bradycardia, and no harm to Cassidy" - See paragraphs 54 to 59.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See third Medicine - Topic 4241.2 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See all Medicine - Topic 4241.2 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See all Medicine - Topic 4241.2 ].

Cases Noticed:

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 24].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 28].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394   W.A.C.  333;  2007  SCC  7,  refd   to.

[para. 28].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 29].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 36].

Counsel:

Vincent R.K. Orchard, Q.C., Steven Hoyer, Susanne Raab and Paul T. McGivern, for the appellant;

James M. Lepp, Q.C., Michael G. Thomas and Daniel J. Reid, for the respondent.

Solicitors of Record:

Borden Ladner Gervais, Vancouver, British Columbia, for the appellant;

Harper Grey, Vancouver, British Columbia, for the respondent.

This appeal was heard on December 4, 2012, before McLachlin, C.J.C., LeBel, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Rothstein and Moldaver, JJ., on April 4, 2013.