Paul McGivern and Susanne Raab were among the team winning the hard-fought battle at the Supreme Court of Canada for an infant with cerebral palsy injured as a result of a failed attempt at a forceps delivery – April 4, 2013 (Full decision available here)
Paul McGivern and Susanne Raab were among the four lawyers representing the plaintiff Cassidy Ediger in a birth trauma lawsuit. Cassidy was born on January 24, 1998. The circumstances of her birth were tragic: she was born “flat” (asphyxiated) and had to be resuscitated. She suffered a severe and permanent brain injury during her birth resulting in grave disabilities: spastic quadriplegia and cerebral palsy. As a result of her injuries, she is unable to speak, is tube-fed and uses a wheelchair. Her life expectancy has also been reduced to 38 years of age.
The Trial Decision
After years of investigation and preparation, the case went to trial in spring of 2008. The trial judge’s decision came out in 2009 finding the obstetrician negligent for using the forceps to assist the delivery without explaining the risks of the procedure to Cassidy’s mother when obtaining her consent to the procedure, and failing to ensure that immediate surgical backup was available to deliver Cassidy by cesarean section in the event that the attempt at forceps delivery fails. The placement of the forceps displaced Cassidy’s head allowing the umbilical cord to become compressed during the contractions and leading to bradycardia, a decrease in a baby’s heart rate, which deprived her brain of necessary oxygen. The trial judge awarded $3,224,000 in damages to Cassidy.
The BC Court of Appeal
The defence appealed the decision of the trial judge to the BC Court of Appeal, and the appeal was heard in the fall of 2010. The judgment of the Court of Appeal came out in spring of 2011 overturning the trial judge’s award of damages to Cassidy and dismissing her claim, essentially saying that the trial judge erred in her finding that the forceps procedure caused the bradycardia which led to Cassidy’s injuries.
The decision of the Supreme Court of Canada
Our lawyers did not abandon Cassidy’s claim, but appealed it to the Supreme Court of Canada, which is the final court of appeal in our country and only hears cases of national importance. Before the case is heard by our highest court, the appealing party needs to demonstrate that the case involves an issue of public importance or raises an important issue of law. Out of approximately 600 applications for leave to appeal filed each year, the Supreme Court only hears about 80 cases.
The Supreme Court of Canada granted leave to hear Cassidy’s case and heard the issues in the fall of 2012. In April of 2013, the Supreme Court restored the trial judge’s decision finding the obstetrician liable for Cassidy’s injuries. Cross-appeals about the amount of damages were referred back to the B.C. Court of Appeal for consideration.
Standard of Care
The Supreme Court of Canada upheld the trial judge’s finding that Dr. Johnston did not meet the standard of care. The Court stated at para. 53,
…Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia persists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s causation finding is sound.
The Supreme Court of Canada also found that the standard of care must be “responsive” to the risks involved.
The Supreme Court of Canada reaffirmed the legal test for causation enunciated in Snell v. Farrell,  2 S.C.R 311 at para. 36,
 The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell,  2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases – as in any other case – assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).
The Supreme Court of Canada concluded that in the face conflicting expert testimony, it was open to the trial judge to accept the plaintiff’s theory of causation over that of the defence having regard to all of the evidence:
 Faced with this conflicting expert testimony on the feasibility of the “displacement” theory and evidence of other potential causes, it was incumbent upon Holmes J. to weigh the evidence before her and determine whether Cassidy had proven causation on a balance of the probabilities. Holmes J. ultimately concluded that Cassidy did satisfy this burden for three reasons. First, as already described, Drs. Shone’s and Farquharson’s testimony regarding the physical effects and distortions of labour contractions, as well as the timing of the steps leading up to a cord compression, were consistent with what occurred here. Second, multiple experts testified that mid-level forceps procedures are potentially dangerous and carry the risk of acute cord compression. Third, the close proximity in time of the forceps attempt and the bradycardia supported the conclusion that the forceps attempt was connected to the cord compression. As a result, Holmes J. concluded that, although she could not be certain of the precise mechanics leading to cord compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia” (para. 135).
 There was no palpable and overriding error in this conclusion. It was open to Holmes J. to accept Drs. Shone’s and Farquharson’s testimony regarding the displacement theory over Dr. Johnston’s testimony. It was also open to her to conclude that the close proximity in time between the forceps attempt and the bradycardia, combined with the well-recognized risk of bradycardia associated with mid-level forceps deliveries, supported a finding of causation in this case.