The critical issues in this case related to a routine ultrasound performed on October 3, 2000. The ultrasound showed that the internal cervical os (located at the top of the cervical canal near the uterus) was open with fluid bulging towards the os. One possible cause of this could be an incompetent cervix. J.S. asked Dr. Willox about cervical cerclage (stitching the cervix closed to prolong the pregnancy). Dr. Willox assessed J.S. and determined that the external cervical os (located at the bottom of the cervical canal near the vagina) was closed. He consulted Dr. Muir, an obstetrician, who advised expectant management. J.S. attended Peace River Hospital on October 22, 2000, with mild contractions. She was transported to a hospital in Edmonton where she was started on medication to try to avoid early delivery but it was unsuccessful. R.S. was 23 weeks gestational age and weighed less than 1 1⁄2 pounds.
Moreau J. found that the expectant management plan met the standard of care, but Dr. Willox breached the standard of care by failing to order weekly clinical examinations and serial ultrasounds at least every two weeks. In addition, when J.S. was having discharge that was consistent with passing the mucus plug per vagina and, a week later, when J.S. had bloody mucusy discharge, Dr. Willox breached the standard of care by failing to consider that this may to be a sign of progressive changes to the cervix. These changes could not be evaluated by clinical examination alone and may have warranted cervical cerclage. In order to meet the standard of care, Dr. Willox was required to schedule ultrasounds immediately after this mucusy discharge was noted and to consult again with an obstetrician about this new symptom.
K.S. nevertheless failed to prove causation. The first causation issue was whether K.S.’s preterm birth was caused by an incompetent cervix (which could be treated by cervical cerclage) or caused by an infection. The defence theory of the case was that the mom and fetus had an infection that led to the preterm delivery. Their expert testified that the most common cause of pre-term birth is infection. The plaintiff’s theory of the case was that the infection occurred not long before delivery because of exposure to vaginal bacteria after J.S.’s cervix started to open due to cervical incompetence. Moreau J. accepted that the dilatation of J.S.’s cervix (preceded by the opening of the internal cervical os and funnelling of the membranes into the cervical canal) was more likely the result of an incompetent cervix than a pre-existing subclinical infection. The plaintiff’s theory that the infection was caused by the dilatation of the cervix and exposure to vaginal flora was accepted. Moreau J. found that it was more probable than not that J.S. had an incompetent cervix and that the incompetent cervix caused the pre-term delivery of K.S.
Unfortunately, for the plaintiff, his claim failed on a series of other causation issues. Moreau J. found that for patients like J.S., with no history of preterm birth, cerclage was not being offered in October 2000 based on ultrasound findings alone, with no other symptoms. Emergency cerclage was an option once J.S.’s cervix started to open but this was a very short window in her case.
J.S.’s cervix started to open sometime between her October 20 appointment with Dr. Willox and her midday presentation to Peace River Hospital on October 22, at which time her cervix was already seven centimetres dilated. By the time she arrived in hospital, emergency cerclage was no longer possible. It was not a viable option if there was suspicion of infection, labour, or imminent delivery. Given that cerclage is contraindicated when infection is present, Moreau J. considered whether emergency cerclage would have prevented the infection that did occur in this case. She found that it was unclear whether the infection could have been prevented had the emergency cerclage been performed in the very short window of time after J.S.’s cervix started to open and when K.S. was born. As a result, the plaintiff had failed to meet the burden of proof.
