In this unfortunate medical malpractice infant case (Ediger v. Johnston,2011 BCCA 253) the trial judge initially found that the surgeon had breached the standard of care and failed to obtain the injury claimant’s informed consent to the procedure, but the Court of Appeal disagreed and dismissed the claim.
The surgeon successfully appealed on the issue of causation claiming that he did nothing to cause the brain damage suffered during the delivery of the infant injury claimant.  Compression of the umbilical cord  caused damage to her central nervous system about 20 minutes before her birth. The effect of the cord compression was to cut off the exchange of blood and oxygen from the placenta to her brain and upon delivery she was non-responsive and severely brain damaged.  Her injuries are catastrophic and irreversible; they have significantly shortened her life expectancy.
The trial judge found that a mid-level forceps delivery was a high risk procedure and that, before attempting the procedure, surgeon should have advised the litigation guardian of its benefits and risks along with the benefits and risks of any alternative procedure, including a Caesarean section.
The Court of Appeal overturned the the finding of causation in a dramatic three judge panel stating:

“[87]         In finding a causal connection between the attempted forceps delivery and Cassidy’s injuries based only on the close proximity in time between the two events, the trial judge appears to have overlooked her finding of fact in para. 124 of her reasons (see para. 52 above) that, based on Dr. LeGresley’s evidence, which she accepted as reliable, the bradycardia began “within at most one and two minutes” after Dr. Johnston had abandoned the procedure and left the labour room to schedule a non-emergency Caesarean section. This was a critical finding of fact that had to be addressed by the trial judge in view of the consensus of opinion from the medical experts that cord compression would have caused an immediate (within seconds), sudden and dramatic decrease in the fetal heart rate.

[88]         The trial judge’s conclusion, that the appellant’s attempted forceps delivery was the cause of the cord compression and thus the fetal bradycardia, is not supported by the evidence or her findings of fact based on the evidence, and consequently amounts to palpable and overriding error….

[93]         In this case, 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 than she was delivered in the existing circumstances where “everyone [was] rushing to prepare for a Caesarean section”. 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.

[94]         In my view the reasoning in Aristorenas and Cotrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.) is applicable in these circumstances. 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….

[102]     Medical negligence cases, particularly those involving the delivery a child, can be challenging in many respects. One can only feel sympathy for the tragic consequences that Cassidy has suffered from the injuries she sustained in birth, and for the demanding responsibilities that her parents lovingly provide in meeting her daily challenges. However, the burden of proof in any tort action remains with the party who advances the claim. In my view, that burden was not met on the evidence in this case.

[103]     Absent a causal connection between Dr. Johnston’s attempted forceps delivery and the cord compression with its attendant fetal bradycardia, the respondent’s action cannot succeed. In these circumstances, I am of the view that the appeal must be allowed and the action dismissed.” Posted byMr. Renn A. Holness

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