Ediger v. Johnston et al., (2011) 305 B.C.A.C. 271 (CA)

• Judge: Saunders, D. Smith and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 30, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 305 B.C.A.C. 271 (CA);2011 BCCA 253

Ediger v. Johnston (2011), 305 B.C.A.C. 271 (CA);

    515 W.A.C. 271

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.056

Cassidy Alexis Ediger, an infant by her Guardian Ad Litem, Carolyn Grace Ediger (respondent/appellant on cross-appeal/plaintiff) v. William G. Johnston (appellant/respondent on cross-appeal/defendant) and Fraser Health Authority, Lisa B. Jeppesen, Jane Doe 1 and Jane Doe 2 (defendants)

(CA037058; 2011 BCCA 253)

Indexed As: Ediger v. Johnston et al.

British Columbia Court of Appeal

Saunders, D. Smith and Groberman, JJ.A.

May 30, 2011.

Summary:

Cassidy Ediger, now aged 13, suffered an acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) about 20 minutes before her birth. The injury was caused by the compression of the umbilical cord, which resulted in fetal bradycardia which persisted until Cassidy was delivered by Caesarean section. Upon delivery, she was non-responsive and severely brain damaged. Cassidy's mother and guardian ad litem commenced a negligence action against the obstetrician, Dr. Johnston.

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 that required a surgical team to be "immediately available" before a mid-level rotational forceps delivery was undertaken and by failing to obtain the mother's informed consent to the procedure. The court found Dr. Johnston liable for Cassidy's injuries and made awards for non-pecuniary and pecuniary damages. Dr. Johnston appealed the finding of liability on the issue of causation only. He also appealed some of the awards of damages, as did Cassidy on a cross-appeal.

The British Columbia Court of Appeal allowed the appeal and dismissed the action. The trial judge's conclusion, that the attempted forceps delivery was the cause of the cord compression, and thus the fetal bradycardia, was not supported by the evidence or her findings of fact based on the evidence. Absent a causal connection between Dr. Johnston's attempted forceps delivery and the cord compression with its attendant fetal bradycardia, the action could not succeed. It was not necessary to address the appeal and cross-appeal on damages.

Medicine - Topic 3050

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

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) about 20 minutes before her birth - The injury was caused by the compression of the umbilical cord, which resulted in fetal bradycardia which persisted until Cassidy was delivered by Caesarean section - Upon delivery, she was non-responsive and severely brain damaged - The trial judge found that the obstetrician, Dr. Johnston, breached the standard of care that required a surgical team to be "immediately available" before a mid-level rotational forceps delivery was undertaken and by failing to obtain the mother's informed consent to the procedure - She found Dr. Johnston liable for Cassidy's injuries - Dr. Johnston appealed the finding of liability on the issue of causation - The British Columbia Court of Appeal allowed the appeal - The trial judge had reasoned that although the precise mechanics of how the attempted forceps procedure caused the cord compression remained unknown, the temporal connection between the procedure and the onset of the fetal bradycardia was sufficient to reasonably infer that a causal connection existed between the two events - However, the trial judge's finding that the attempted forceps delivery caused the cord compression and bradycardia was not supported by her findings of fact on the timing and sequence of events and was inconsistent with the undisputed medical evidence - This was not a case where an inference of causation could be drawn - The trial judge's conclusion, that the attempted forceps delivery was the cause of the cord compression, and thus the fetal bradycardia, was not supported by the evidence or her findings of fact and amounted to palpable and overriding error - See paragraphs 81 to 88.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) about 20 minutes before her birth - The injury was caused by the compression of the umbilical cord, which resulted in fetal bradycardia which persisted until Cassidy was delivered by Caesarean section - Upon delivery, she was non-responsive and severely brain damaged - The trial judge found that the obstetrician, Dr. Johnston, breached the standard of care that required a surgical team to be "immediately available" before a mid-level rotational forceps delivery was undertaken and by failing to obtain the mother's informed consent to the procedure - She found Dr. Johnston liable for Cassidy's injuries - Dr. Johnston appealed the finding of liability on the issue of causation - The British Columbia Court of Appeal allowed the appeal - The court stated, inter alia, "no evidence was led nor findings of fact made regarding what delay, if any, could have been avoided if the appellant had had a surgical team 'immediately available' or obtained Mrs. Ediger's informed consent. Specifically, the medical experts were never asked if Cassidy could have been delivered any faster under the 'immediately available' standard of care ... Nor were they asked that had Dr. Johnston obtained Mrs. Ediger's informed consent to the procedure it would have made any difference to the outcome. ... Absent evidence to support a finding of fact that, but for Dr. Johnston's breaches of the standard of care, Cassidy would have been delivered earlier than she was and all or part of her injuries would have been prevented or diminished factual causation on the 'but for' test was not established" - See paragraphs 89 to 94.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) about 20 minutes before her birth - The injury was caused by the compression of the umbilical cord, which resulted in fetal bradycardia which persisted until Cassidy was delivered by Caesarean section - Upon delivery, she was non-responsive and severely brain damaged - The trial judge found that the obstetrician, Dr. Johnston, breached the standard of care that required a surgical team to be "immediately available" before a mid-level rotational forceps delivery was undertaken and by failing to obtain the mother's informed consent to the procedure - She found Dr. Johnston liable for Cassidy's injuries - Dr. Johnston appealed the finding of liability on the issue of causation - The British Columbia Court of Appeal allowed the appeal - The trial judge's conclusion that the attempted forceps delivery was the cause of the cord compression and thus the fetal bradycardia, was not supported by the evidence or her findings of fact - Absent the finding that Dr. Johnston's actions factually caused the cord compression and consequential bradycardia, it was not open for the respondent to argue that, but for Dr. Johnston's breaches of the standard of care, the harm to Cassidy would not have occurred - The court stated that "It was the complications that could have arisen out of an attempted forceps delivery that was the identified risk of harm and required Dr. Johnston's compliance with the 'immediately available' standard of care, and it was those complications about which Dr. Johnston failed to inform Mrs. Ediger. In short, there was no substantial connection (ie., a lack of proximity) between the attempted forceps procedure and Dr. Johnston's negligent conduct and therefore legal causation could not be established" - See paragraphs 95 to 101.

Medicine - Topic 4252.2

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

Medicine - Topic 4260.7

Liability of practitioners - Negligence - Duty of care to foetus - The infant respondent, now aged 13, suffered an acute and severe hypoxia-ischemic encephalopathy about 20 minutes before her birth - Upon delivery by Caesarean section, she was non-responsive and severely brain damaged - The infant respondent's mother and guardian ad litem, commenced a negligence action against the appellant obstetrician - The British Columbia Court of Appeal stated that "Cherry [v. Borsman] continues to be binding in this jurisdiction and provides an authoritative basis for finding that the appellant owed a duty of care to the infant respondent, upon her birth. Such a duty of care gave the infant respondent the legal status to sue the appellant in tort for any injuries that he caused to her as a fetus before her birth as a result of his failure to meet the requisite standard of care during her delivery" - See paragraph 33.

Practice - Topic 132

Persons who can sue and be sued - Infants - Foetus - [See Medicine - Topic 4260.7 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy about 20 minutes before her birth - The injury was caused by the compression of the umbilical cord, which resulted in fetal bradycardia which persisted until Cassidy was delivered by Caesarean section - Upon delivery, she was non-responsive and severely brain damaged - The trial judge found that the obstetrician, Dr. Johnston, breached the standard of care that required a surgical team to be "immediately available" before a mid-level rotational forceps delivery was undertaken and by failing to obtain the mother's informed consent to the procedure - She found Dr. Johnston liable for Cassidy's injuries - Dr. Johnston appealed the finding of liability on the issue of causation - The British Columbia Court of Appeal stated, inter alia, that "the material contribution test was not applicable because it was not impossible for the respondent to prove that the appellant's negligent conduct caused Cassidy's injuries. The 'but for' test of causation required the respondent to establish, on a balance of probabilities, a substantial connection between the risk of harm caused by the appellant's negligent acts (the breach of the 'immediately available' standard of care and/or failure to obtain Mrs. Ediger's informed consent) and the resulting injuries to the respondent. In other words, in order to succeed, the respondent had to demonstrate that Cassidy's injuries fell within the type of risk to which Mrs. Ediger was exposed, i.e., the forceps procedure, and that the appellant's negligent conduct was the cause-in-fact or a 'real causa causans' of Cassidy's injuries" - See paragraph 80.

Torts - Topic 61

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

Torts - Topic 65

Negligence - Causation - Evidence - [See first Medicine - Topic 4241.2 ].

Cases Noticed:

Paxton v. Ramji (2008), 242 O.A.C. 34; 72 O.R.(3d) 401; 2008 ONCA 697, refd to. [para. 30].

Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 70 B.C.L.R.(2d) 273 (C.A.), folld. [para. 31].

Liebeg et al. v. Guelph General Hospital et al. (2010), 263 O.A.C. 180; 2010 ONCA 450, 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. 60].

Ciarlariello et al. v. Schacter et al., [1993] 2 S.C.R. 119; 151 N.R. 133; 62 O.A.C. 161, refd to. [para. 60].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 60].

Bystedt v. Hay et al. (2004), 194 B.C.A.C. 240; 317 W.A.C. 240; 24 B.C.L.R.(4th) 205; 2004 BCCA 124, refd to. [para. 64].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 65].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 67].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008; [1973] 1 W.L.R. 1 (H.L.), refd to. [para. 72].

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. 73].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 209 D.L.R.(4th) 513; 2002 CarswellQue 142; 2002 SCC 15, refd to. [para. 76].

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. 77].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 78].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 78].

Sam v. Wilson et al. (2007), 249 B.C.A.C. 228; 414 W.A.C. 228; 78 B.C.L.R.(4th) 199; 2007 BCCA 622, refd to. [para. 79].

Moore v. Castlegar & District Hospital et al. (1998), 103 B.C.A.C. 187; 169 W.A.C. 187; 49 B.C.L.R.(3d) 100 (C.A.), refd to. [para. 84].

Aristorenas v. Comcare Health Services et al. (2006), 216 O.A.C. 161; 83 O.R.(3d) 282 (C.A.), refd to. [para. 92].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), refd to. [para. 94].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (4th Ed. 2008), pp. 428, 429 [para. 68].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 490 [paras. 71, 97].

Prosser and Keaton, The Law of Torts (5th Ed. 1984), p. 269 [para. 29].

Winfield, Percy Harry, and Jolowicz, John Anthony, Tort (17th Ed. 2006), generally [para. 71]; pp. 6-1 [para. 68]; 6-3 [para. 69].

Counsel:

J. Lepp, Q.C., and M. Thomas, for the appellant;

V. Orchard, Q.C., P. McGivern and A. Howell, for the respondent.

This appeal was heard on October 20 and 21, 2010, at Vancouver, B.C., before Saunders, D. Smith and Groberman, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by D. Smith, J.A., on May 30, 2011.