Gutbir v. University Health Network et al., 2012 ONCA 66

• Judge: Weiler, Armstrong and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 10, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 66;(2012), 287 O.A.C. 223 (CA)

Gutbir v. Univ. Health Network (2012), 287 O.A.C. 223 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.009

Zmora Gutbir, a mentally incapable person, and Tamar Gutbir and Yuval Gutbir, minors, by their Litigation Guardian, Shaya Petroff, Avraham Gutbir and Atalyah Gutbir (plaintiffs/respondents) v. University Health Network and R. Derek Nicholson (defendants/appellant)

(C53132; 2012 ONCA 66)

Indexed As: Gutbir v. University Health Network et al.

Ontario Court of Appeal

Weiler, Armstrong and Hoy, JJ.A.

February 2, 2012.

Summary:

Zmora Gurbir was born at the Toronto General Hospital in January 1984. Her brain was permanently damaged. Following a trial with a judge and jury, the appellant (University Health Network) was found to have breached the standard of care based on the manner in which it had monitored the foetal heart rate. The jury found that this breach meant that foetal heartbeat abnormalities that should have been detected were not, and detection would have allowed an earlier intervention which could have prevented permanent brain injury. According to the jury, Zmora's brain injury occurred because she had been deprived of oxygen over a period of between one and three hours while in utero. She now lived with cerebral palsy. The appellant appealed the jury's findings of both breach of the standard of care and causation.

The Ontario Court of Appeal dismissed the appeal.

Medicine - Topic 6863

Nurses - Negligence - Patient care - Causation - Zmora Gurbir was born at the Toronto General Hospital in January 1984 - Her brain was permanently damaged - Following a trial with a judge and jury, the appellant (University Health Network) was found to have breached the standard of care based on the manner in which it had monitored the foetal heart rate - The jury found that this breach meant that foetal heartbeat abnormalities that should have been detected were not, and detection would have allowed an earlier intervention which could have prevented permanent brain injury - The appellant appealed, arguing that there was no evidence that the breach of the standard of care of the attending nurse caused or materially contributed to Zmora's brain injury - The Ontario Court of Appeal dismissed the appeal - While there was no direct evidence of causation, there was evidence from which the jury could properly infer a causal connection - The evidence of Dr. Carson and Dr. Hill established that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted - Further, given the evidence that the attending nurse fell below the standard of care with respect to foetal heart rate monitoring, and the jury's rejection of the alternate theory that hypoglycaemia was a major contributor to Zmora's brain damage, the nurse's breach was the only reasonable explanation for the cause of Zmora's brain injury - See paragraphs 36 to 44.

Medicine - Topic 6863

Nurses - Negligence - Patient care - Causation - Zmora Gurbir was born at the Toronto General Hospital in January 1984 - Her brain was permanently damaged - Following a trial with a judge and jury, the appellant (University Health Network) was found to have breached the standard of care based on the manner in which it had monitored the foetal heart rate - The jury found that this breach meant that foetal heartbeat abnormalities that should have been detected were not, and detection would have allowed an earlier intervention which could have prevented permanent brain injury - The appellant appealed - The appellant submitted that any negligence on its part was found by the jury to be a "lost chance" to prevent permanent brain injury as opposed to a finding on the balance of probabilities that the appellant caused or materially contributed to Zmora's injuries - The Ontario Court of Appeal dismissed the appeal - The appellant's submission was based on a sentence in one of the jury's answers - While that sentence in isolation could be read in the manner submitted by the appellant, when the jury's answers to the questions were read as a whole and in conjunction with Dr. Carson's evidence, the court was satisfied the jury's finding was based on a balance of probabilities - The court also rejected the appellant's submission that evidence as to exactly when the irregular foetal heart beat began was required in order for causation to be established - See paragraphs 45 to 47.

Medicine - Topic 6864

Nurses - Negligence - Patient care - Standard of care - [See Medicine - Topic 6866 ].

Medicine - Topic 6866

Nurses - Negligence - Patient care - Negligent care - Zmora Gurbir was born at the Toronto General Hospital in January 1984 - Her brain was permanently damaged - Following a trial with a judge and jury, the appellant (University Health Network) was found to have breached the standard of care based on the manner in which it had monitored the foetal heart rate - The jury found that this breach meant that foetal heartbeat abnormalities that should have been detected were not, and detection would have allowed an earlier intervention which could have prevented permanent brain injury - The appellant appealed, asserting that the attending nurse did not fall below the standard of care in monitoring the foetal heart rate - The Ontario Court of Appeal dismissed the appeal - The jury found that the standard of care was breached in two respects: failure to perform electronic foetal monitoring (EFM) and failure to perform manual intermittent auscultation (IA) properly - As there was evidence as to the standard of care for EFM and evidence to support the jury's verdict that the standard of care for EFM had been breached, the jury's verdict in this regard was not plainly unreasonable - Second, it was open to the jury to conclude on the evidence that the nurse failed to conduct IA properly based on the infrequency in which she assessed Zmora's heart rate - While the trial judge ruled that Dr. Carson could not give evidence as to the standard of care of a nurse in 1984, he was qualified as an expert on the issue of foetal heart rate monitoring and he gave evidence as to the frequency with which IA should be performed - There was therefore evidence from which the jury was entitled to infer that the attending nurse fell below the standard of care in the manner she administered IA - The jury's findings were not plainly unreasonable - See paragraphs 21 to 35.

Cases Noticed:

McLean v. McLean, [1937] S.C.R. 341, refd to. [para. 5].

Counsel:

Paul J. Pape and Tanya A. Pagliaroli, for the appellant;

Gavin MacKenzie, Hilik Y. Elmaliah and Mark Hines, for the respondents.

This appeal was heard on January 10, 2012, before Weiler, Armstrong and Hoy, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on February 2, 2012.