The trial judge held that both physicians fell below the standard of care, causing 50 minutes of unnecessary delay without which Baby Ewashko’s brain injury would have been avoided. The most likely cause of the first fetal heart rate deceleration (that the physicians wanted to rule out) was cord compression. The depth of the deceleration raised concerns as to whether the fetus was able to oxygenate his brain. At the time of his assessment of Ms. Ewashko, Dr. Groenewald thought this baby needed to be delivered as soon as possible. He knew that the deceleration had resolved but recognized that whatever caused the prolonged deceleration then may recur at any time. The first step towards delivery was to contact Dr. Hugo. Dr. Groenewald argued that it was reasonable to delay that call until after he dealt with a life-threatening emergency for another patient, given that concerning features of Ms. Ewashko’s fetal heart rate tracing had resolved, and she and her fetus were stable. He argued, that decision was a defensible exercise of his clinical judgment. The Court disagreed, and held that the applicable standard of care was that Dr. Groenewald contact Dr. Hugo, as soon as reasonably possible to advise him of the need for his prompt attendance at the hospital and the core reasons: Ms. Ewashko’s arrival at the hospital in early labour, the baby in breech position and an abnormal fetal heart rate pattern.
The Court held that Dr. Groenewald did not call as soon as reasonably possible and thereby breached the standard of care. Both his heart attack patient and Ms. Ewashko needed urgent care and Dr. Groenewald was required to either make an immediate one-minute call to Dr. Hugo directly or ask a nurse to call while he attended to his other patient. A key component of this judgment was the finding that Ms. Ewashko had not “stabilized” in the sense that all steps towards initiating the caesarean section could be put on hold until the other emergency had been cleared. While the fetal heart rate was no longer abnormal, cord compression was the likely cause of the deceleration and there was a recognized risk of recurrence of such compression or other cause, with no way of knowing when a further incident might occur, for how long, and with what severity. Dr. Groenewald was not entitled to view the clinical situation as if that deceleration had not occurred. Foreseeability and risk of harm played an important role in the court’s reasoning. The Court viewed Ms. Ewashko’s situation as “akin to an earthquake having occurred, citizens in the earthquake zone needing assistance to be rescued, and the risk of another material tremor hanging over the situation.”20 The situation is “stable” in the sense that there is no earthquake currently occurring. It is not certain that another tremor will occur, but it is also not certain that another tremor will not occur.
Dr. Hugo’s liability attached to his “judgment call” to attend to the hospital, examine Ms. Ewashko and get her consent to a caesarean section before he called the operating room team. The Court held that the applicable standard of care was to immediately mobilize the operating room team, direct that Ms. Ewashko be prepped for surgery and then depart his home for the hospital. Part of this analysis was the foreseeability of the need for caesarean section. The Court accepted the expert evidence that there was nothing to weigh in favour of deferring the call to the team until after Dr. Hugo had assessed Ms. Ewashko. Dr. Hugo knew that rotation of the fetus was not an option due to her ongoing labour. He knew that the breech presentation prevented vaginal delivery at that hospital. Caesarean section was the only option for Ms. Ewashko. Although Dr. Hugo wanted to assess the fetal heart rate tracing for himself, the clinical situation was that there was prolonged deceleration of the fetal heart rate which required an urgent delivery, as assessed by Dr. Groenewald, a physician that Dr. Hugo had confidence in. The Court found that although Ms. Ewashko’s consent would be required, there was no material possibility that she would decline in this situation to warrant waiting for the consent prior to mobilizing the operating room team. The only downside of calling them in and finding that Ms. Ewashko declined the caesarean section, was having the team unnecessarily attend the hospital from home. In contrast, if Ms. Ewashko had consented but the team had not yet been called, the downside would be wasting valuable time with an urgent operation. The Court noted that the first downside is relatively inconsequential compared to the second.
