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Causation

Supreme Court of Canada Win for Twelve-year old with Cerebral Palsy

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On Friday, May 24, 2013, the Supreme Court of Canada delivered a judgment that is of interest to judges and lawyers across the country, and has special significance for one BC family.

As a result of this decision, a child who suffered a significant brain injury as a result of medical negligence will obtain over $4 million in compensation to pay for the extensive therapy and support that he requires.

The Injury

Monica Cojocaru gave birth to her first child by ceasarean section. In the spring of 2001, when she was approaching the delivery of her second child, her physician recommended to her that she deliver the baby vaginally. A vaginal birth after a caesarean section is known as a VBAC delivery. Mrs. Cojocaru was not warned about the implications of this procedure with regard to the health of her baby should a uterine rupture occur.

During this delivery, her uterus did indeed rupture and the baby was extruded into the mother’s abdomen, depriving him of oxygen for over 20 minutes. As a result, Eric Cojocaru suffered a brain injury known as hypoxic ischemic encephalopathy. He was left with cerebral palsy, a severe and permanent condition that affects every aspect of his life. Described as a sweet-natured and likeable boy, Eric is not able to carry out the most basic daily activities and has memory problems and communication difficulties due to his brain injury.

The First Win at the BC Supreme Court

Eric and his mother sued the hospital, nurses and doctors for negligence causing his brain injury. The judgment from the BC Supreme Court was released in April 2009. The trial judge found the hospital, a nurse and three doctors liable in negligence and awarded Eric and his mother $4 million in damages.

Defence Appeals the Win

A substantial portion of the plaintiff’s submissions were copied into the judge’s decision, and the defence appealed the decision. The defence’s appeal centred primarily on the allegation that the reproduction of large portions of the plaintiff’s submissions showed that the trial judge had not given full and fair consideration to their position. The defence asked that the judgment be set aside and a new trial ordered.

In a judgment released in April 2011, the BC Court of Appeal did just that, stating that the judge’s reasons were “substantially a recitation of the [plaintiff’s] submissions” which, to their mind, was sufficient to displace the presumption of judicial integrity and impartiality.

This was a terrible loss for Eric and his mother, but they were not prepared to give up.

The Supreme Court of Canada

On November 13, 2013, Paul McGivern  argued Eric’s case in front of the Supreme Court of Canada. In his opening remarks Paul told the court that

“This case deals with a brain damaged child and his mother who are trying to deal with the ramifications of an issue which in many respects sits outside the legal disputes between the parties. …

The manner in which the judiciary expresses itself is something that my client has no control over. …

At the end of the day I need a judgment so this child can get the care that he needs.”

And that’s exactly what the Court did.

Victory for Eric

In a unanimous decision, the Court addressed the two major issues in the case.

They first addressed and clarified the law on judicial “copying.” This is a procedural matter of keen interest to judges and lawyers, but of interest to Eric and his mother only because it had the potential to send the case back for a new trial. The Supreme Court of Canada acknowledged that it would have been better if the trial judge had not copied extensively from the plaintiff’s submissions, but determined that was not reason enough to set aside the decision of the trial judge and require a new trial.

The Court then turned to the issue of liability and found one doctor negligent on the issue of informed consent. The Court found that the doctor did not provide Eric’s mother with the information she needed to make an informed decision about having a VBAC. The information which was provided fell short on two fronts. First, the doctor over-estimated the likelihood of a successful VBAC given Ms. Cojocaru’s particular situation. More importantly, the Court agreed with the trial judge’s finding that while the doctor discussed the statistical risks of a VBAC including the risk of uterine rupture, she didn’t explain what those statistics meant in terms of the risk to her life and the life of her baby if a uterine rupture were to occur.

The Supreme Court of Canada ordered that the doctor compensate Eric for his injuries. The original award of $4 million was reinstated. Over half of the award is for the costs of the care that Eric will need for the rest of his life to maximize his health and quality of life despite his permanent injuries. After years of struggling to manage the special challenges of a life with cerebral palsy, Eric and his mother will now be able to obtain the equipment, housing and care that Eric so desperately needs.

Read the Supreme Court of Canada judgment here

Read the BC Court of Appeal judgment here

Read the BC Supreme Court judgment here

Win for an injured infant at the Supreme Court of Canada

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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,

[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.

Causation

The Supreme Court of Canada reaffirmed the legal test for causation enunciated in Snell v. Farrell, [1990] 2 S.C.R 311 at para. 36,

[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 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:

[39] 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).

[40] 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.

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