In Ediger, the trial judge found that the standard of care did not require a forceps procedure to be done in the operating room with a double setup for emergency c-section if forceps were unsuccessful, but did require that backup for an emergency c-section be “immediately available.”8 The defendant argued that the plaintiff could not prove causation because even if he had arranged for backup to be immediately available by having an anesthetist standing by, he could not have intervened in time to rescue the baby.9 The Supreme Court of Canada rejected this argument as the proper interpretation of the trial judge’s finding that the standard of care required backup to be “immediately available” because it would be unresponsive to the risk in question and potential harm arising from it.10 If the defendant’s argument was accepted, the physician would never be liable for breaching the standard of care where fetal bradycardia results and leads to debilitating injury.11 Instead, the Supreme Court of Canada concluded that the proper interpretation of the standard of care was that it had to be responsive to the risk and that the defendant had to take reasonable precautions such that the baby could have been delivered without injury upon occurrence of the known risk of the procedure.12
Examples where the foreseeability/risk of harm led to a successful claim for the plaintiff
K.B. v Guhle involved a respiratory illness in a child that evolved into septic shock requiring multiple amputations.13 This case serves as a good example of how foreseeable harm and degree of risk underlie medical malpractice claims. KB was an 11-month-old infant admitted to hospital on February 19 with an RSV infection (which is a viral infection). She had been experiencing symptoms for two weeks and had a history of respiratory illnesses. Her first physician ordered blood tests, a nose swab and a chest x-ray. He considered (but did not chart) pneumonia and bronchopneumonia. His interpretation of the imaging was that these were not shown. The radiologist report opining that there were findings consistent with bronchopneumonia was not available until much later. Upon admission, KB’s care was managed by Dr. Guhle. KB’s symptoms worsened on February 21. The on-call physician at the time questioned a secondary infection, noted on the chart that KB should start amoxicillin, a broad-spectrum antibiotic, and directed it be administered orally. The amoxicillin was not administered to KB. Dr. Guhle remained her most responsible physician. KB’s chart included symptoms of wheezing, lung crackles, labored breathing, skin color changes and increased fever. Dr. Guhle agreed in evidence at trial that KB’s lethargy could be a clinical symptom of progression of a bacterial infection to sepsis but that he heard wheezing in both her lungs which would be consistent with the confirmed RSV infection and inconsistent with a bacterial infection or pneumonia. Dr. Guhle was aware that there was a risk of bacterial infection and sepsis. He ordered a blood test which showed an elevated complete blood count, an abnormal neutrophil count and a white blood cell count that had increased since the previous blood test. He was reassured, however, by the fact that the white blood cell count remained in the normal range, even if it had increased. By the morning of February 22, KB was in respiratory failure. By that time, it was too late to intervene to avoid her permanent injuries. All medical experts agreed that by then, KB was suffering a bacterial infection that caused her to develop sepsis and multi-organ dysfunction which, despite treatment on February 22, led to ongoing limb ischemia and resulted in multiple amputations.
The Court was clear that the injury itself does not set the standard of care and the distressing result should not be given undue weight.14 Instead, whether an act or omission was negligent was to be assessed by considering whether a reasonable person should have anticipated that what
