The causation issue was the primary point of contention in relation to the jury’s findings. The argument was twofold. First, defence counsel submitted that the plaintiff had offered no evidence on which the jury could find causation because the plaintiff had failed to lead evidence on what would have happened had Rhonda been delivered prior to April 22. In addition, defence counsel submitted that the jury’s answers were not responsive to the questions on causation and could not support a basis for judgment.
As to the first point, defence counsel argued that it was incumbent on the plaintiff to call evidence to establish on a balance of probabilities that if Rhonda had been delivered earlier, it was more likely than not that she would not have brain damage, but that the plaintiff failed to do so. Plaintiff’s counsel argued, with the support of expert testimony, that the brain injury occurred in the 30 minutes or so prior to birth and was linked to the fact Rhonda was intrauterine growth restricted (IUGR). Thus, it was open to the jury to find that Rhonda should have been delivered earlier and if she had been, that she would not have suffered brain damage. The theory was that Rhonda was IUGR which carried risks; such risks materialized because the pregnancy continued and the risks increased. The defence theory acknowledged the IUGR issue, but asserted that apart from a difficult delivery, Rhonda was born without compromise and any problems she currently has are unrelated to the events around the time of her birth. Her test results following birth were not what you would expect from an individual who suffered a hypoxic-ischemic brain injury at the time of birth. The defence theory was that she suffered an injury in the months after her birth, possibly as a result of a genetic disorder. The trial judge agreed that the plaintiff’s expert evidence was “less than ideal”, “lacked cohesiveness and specificity” and much of it “consisted of bald assertions…broad brush statements lacking in specificity.” The court held that to reject the jury verdict on this point required that there be no evidence upon which the jury could have reached its conclusion, a very low threshold. As the plaintiff’s experts had testified that if Rhonda had been delivered 30 minutes earlier she would have avoided her brain injury, there was an evidentiary foundation on which the jury could have found causation. The judge held that it was not appropriate to weigh the evidence or its reliability on this particular challenge to the jury verdict.
The court went on, however, to consider the next challenge: that the jury’s answers were not responsive to the questions on causation and therefore could not found a basis for judgment. The questions to the jury were as follows (an identical set of questions for each defendant except with the names changed):
1(a) Have the appellants satisfied you on a balance of probabilities that there was a breach of the standard of care on the part of Dr. Samra/Ma?
1(b) If yes, please state the particulars of the negligence and provide clear and specific answers.
2(a) If your answer to question 1(a) is yes, have the appellants satisfied you on a balance of probabilities that, but for the breach of the standard of care, Rhonda would not have sustained brain damage?
2(b) If your answer to question 2(a) is yes, how did Dr. Samra/Dr. Ma’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers. The trial judge explained to the jury that a finding that a standard of care was breached does not automatically result in liability; a causal link between the breach and the harm is required. She instructed the jury that the plaintiff must prove on a balance of probabilities that, but for the breach, the injury would not have occurred, i.e. that if they concluded that Dr. Samra or Dr. Ma should have delivered Rhonda earlier than April 22, 2006, they would still have to be satisfied that the failure to do so was a necessary cause of Rhonda’s brain damage. She specifically instructed the jury that they must set out how or why the doctor’s breach of the standard of care caused Rhonda’s injuries. In finding both a breach of the standard of care and a causal link, the jury provided the following answers:
- In relation to Dr. Samra: Dr. Samra’s failure to move the C-Section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage.
- In relation to Dr. Ma: Dr. Ma’s failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more than likely caused her brain damage.
