The Supreme Court of Canada released an important decision for medical malpractice plaintiffs today.
In Ediger v. Johnston, the plaintiff “C” suffered from brain damage caused during her birth. C now lives with spastic quadriplegia and cerebral palsy. She is tube-fed, confined to a wheel chair and is completely dependent on others for all of her daily needs. She has a significantly reduced life expectancy of 38 years.
The physician delivering C, Dr. William Johnston decided to use a mid-level forceps procedure. But he did not inform nor warn C’s mother of the risks of this delivery method. At some point during the delivery Johnston decided to abandon the forceps method and left the room to make arrangements for a Caesarean section. In the meantime C’s umbilical cord was obstructed lead to her injuries.
At trial the judge found the doctor breached the standard of care in that he both should have had surgical backup available before attempting the forceps procedure and he should have obtained consent from C’s mother before commencing the procedure. The trial judge awarded C a total of $3,224,000 in damages.
At the British Columbia Court of Appeal, the doctor successfully appealed the decision. I wrote about the unfortunate British Columbia Court of Appeal decision Court of Appeal Overturns Award to Brain Injured Baby – Ediger v. Johnston
The B.C. Court of Appeal ultimately determined that C’s injuries were not the result of Dr. Johnston’s actions. The B.C. Court of Appeal confirmed that the Courts were adopting a strict test with respect to proving causation in medical malpractice cases. Following that decision in 2011, I said that the case confirmed that medical malpractice cases remained “complicated, risky and difficult to prove.”
Today, the Supreme Court of Canada reversed the Court of Appeal’s decision and ordered that C receive compensation.
The SCC noted that “A ‘mid-level’ forceps delivery is the riskiest type of forceps delivery” and Dr. Johnston did not inform Mrs. Ediger of the potential risks associated with this delivery method. The SCC also paid attention to the fact that, prior to initiating the forceps procedure, Dr. Johnston never inquired about the availability of an anaesthetist or operating room staff in the event that a C-section was required.
Standard of Care
The Supreme Court of Canada agreed with the trial judge that Dr. Johnston did not meet the required standard of care, and this caused of the injuries. In their decision the unanimous Court stated:
 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 exists 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. [My emphasis]
The Court also affirmed the trial judge’s findings that Mrs. Ediger would likely have rejected the forceps method in favour of a C-section, had she been properly informed of the risks.
The decision is important because the Supreme Court of Canada implicitly recognizes that a discussion of informed consent is not simply a check list of possible harms/risks. rather the discussion is one that must be "responsive" to the risks involved.
Previously I had lamented the strict interpretation of causation used by the BCCA. However the SCC had this to say on the legal test to be applied in determining causation:
 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).
In paragraphs 39 and 40 of their decision, the SCC commented on the level of certainty required to prove causation:
…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.
This decision by the SCC is a victory for medical malpractice victims. The decision effectively rejects the narrow interpretation of causation applied by the B.C. Court of Appeal. Confirms that certainty is not required to prove cauastion, and confirms that discussions regarding informed consent need to be responsive to the risks involved.
Want More Information?
If you or a loved one have suffered injuries that you think may be due to medical malpractice you can buy a copy of my book: Health Scare – The Consumer’s Guide to Medical Malpractice Claims in Canada: Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation on Amazon.com.
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