Medina and K.S. demonstrate some of the many causation complexities in birth injury cases. This is not to say, however, that causation is insurmountable in all cases. When sufficient information is available, it may be possible to link the negligent care to the injury suffered and establish that “but for” the negligence, the injury would have been avoided.
Our previous article in this series, on the standard of care in birth injury cases, discussed Ediger (Guardian ad litem of) v. Johnston, a case involving an attempted mid-level forceps delivery.9 The forceps delivery failed, and Dr. Johnston left the room to arrange for a caesarean delivery. Minutes later, the fetal heart rate plummeted into a persistent bradycardia and never recovered. The plaintiff, Cassidy Ediger, was delivered by caesarean section eighteen minutes later but suffered a severe brain injury resulting in spastic quadriplegic cerebral palsy. At trial, the court found that Dr. Johnston’s failure to ensure surgical backup was immediately available in the event of a bradycardia following the mid-level forceps procedure resulted in the plaintiff’s severe brain injury.
The BC Court of Appeal allowed the defendant’s appeal. First, the Court of Appeal held that the evidence did not support the trial judge’s conclusion that the attempted forceps delivery caused the bradycardia. In the court’s analysis, cord compression from the forceps delivery would have resulted in a bradycardia almost simultaneous with the attempt, not a few minutes later, after Dr. Johnston had left the room. If the forceps did not cause the bradycardia, Dr. Johnston’s breaches of the standard of care leading up to the procedure were not a “but for” cause of the plaintiff’s injuries as the bradycardia could have occurred in any event. Second, the Court of Appeal held that, although injury would have been avoided if the plaintiff had been delivered 10 minutes earlier, it had not been established that the delivery would have happened any sooner if Dr. Johnston had arranged for immediately available surgical backup.
The appeal to the Supreme Court of Canada was on the issue of causation. The Supreme Court of Canada allowed the appeal and upheld the trial judge’s decision. The court held that the trial judge did not err in accepting that the bradycardia was caused by the forceps displacing the baby’s head such that the umbilical cord could slip into the space and become trapped. With the next maternal contraction, the cord would then be compressed, cutting off the baby’s blood and oxygen supply. The Supreme Court of Canada held that it was acceptable for the trial judge to accept the plaintiff’s theory of causation after weighing the evidence, including the physiology of labour, the known risk of cord compression with mid-level forceps procedures and the close proximity in time between the application of the forceps and the onset of bradycardia.
Furthermore, the court held that the trial judge did not err in accepting that the injury could have been avoided if Dr. Johnston had arranged for immediately available surgical backup. The defence interpretation of “immediately available” was that Dr. Johnston was only required to ensure the anaesthetist was not engaged in a surgery at the time of the forceps procedure.
The Supreme Court of Canada rejected this interpretation. While it was accepted that the presence of the anaesthetist alone would not have led to delivery in time to avoid the brain injury, Dr. Johnston could not avoid liability based on this reality. If it was accepted that surgical backup “immediately available” meant only availability of the anaesthetist, the physician would never be liable for breaching the standard of care when fetal bradycardia occurred and the bradycardia would lead to injury in all cases. It would impose a standard of care in response to the risk of bradycardia that would make no material difference to the ability to respond to the bradycardia.
The Supreme Court of Canada interpreted the trial judge’s reasons differently: the trial judge contemplated a standard of care that was responsive to the recognized risk of fetal bradycardia in midlevel forceps procedures and required reasonable precautions to allow for delivery without injury if a bradycardia indeed occurred. The risk could not be disregarded. The failure of Dr. Johnston to take precautions caused a delay in delivery and as a result caused injury from the bradycardia.
