Court of Appeal Overturns Award to Brain Injured Baby – Ediger v. Johnston
The British Columbia Court of Appeal released its reasons last week in the case of Ediger v. Johnston.
Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (HIE) about 20 minutes before her birth. Her injury was caused by a compression of her umbilical cord which cut off oxygen from the placenta to her brain. The asphyxia caused a deceleration in her fetal heart rate which lasted until Cassidy was delivered by emergency caesarean section.
Cassidy’s injuries are catastrophic and irreversible and will significantly shorten her life expectancy.
Cassidy’s mother, Caroline Ediger, filed a medical malpractice claim against the obstetrician who delivered Cassidy, Dr. William Johnston.
At trial, the judge found Dr. Johnston did not have a surgical team to be “immediately available” before the delivery started and that he failed to obtain the mother’s informed consent to the procedure.
Failed to Explain
The trial judge found Dr. Johnston should have advised Cassidy’s mother of the benefits and risks of attempting a delivery by using forceps and the risks and benefits of proceeding by caesarean section.
Breached Standard of Care
The judge concluded Johnston breached the standard of care (was negligent) because he failed to have an anesthesiologist “immediately available” before attempting a mid-level forceps delivery, and in failing to obtain Ms. Ediger’s informed consent to the procedure.
The “immediately available” standard of care was based upon guidelines for forceps delivery published by the Society of Obstetricians and Gynecologists Canada.
After finding Dr. Johnston failed to meet the standard of care, the trial judge turned to the issue of causation. The trial judge addressed this issue by noting: “the plaintiff cannot succeed unless she establishes that Dr. Johnston’s failure to meet the standard of care caused Cassidy’s injuries.”
All of the medical experts that testified at trial agreed that cord compression likely caused the fetal bradycardia that lead to Cassidy’s acute hypoxia-ischemic injury. The question for trial was whether Dr. Johnston’s attempted forceps delivery caused the cord compression.
A Matter of Seconds
The medical experts who testified agreed that fetal bradycardia would occur within seconds of cord compression, no matter what the cause. Therefore, it was important to determine whether the bradycardia occurred during or in close proximity to Dr. Johnston’s application of the forceps.
The defendants relied upon the evidence of Dr. Johnston and another physician present during the delivery to suggest that there was a gap of several minutes after the use of the forceps and the onset of Cassidy’s bradycardia.
The plaintiff relied upon nurses’ notes to argue that Cassidy’s fetal heart rate fell to 60 beats per minute (dangerously low) immediately after Dr. Johnston removed the forceps.
The trial judge concluded that the most reliable evidence in timing of the fetal bradycardia came from another doctor who was present in the operating room, Dr. LeGresley and held that the onset of bradycardia occurred within 1-2 minutes after Dr. Johnston abandoned his attempt at forceps delivery.
Couldn’t Establish Cause With Precision
The trial judge decided that the evidence could not establish with precision the mechanical process by which Cassidy’s umbilical cord was compressed so as to cause her bradycardia.
The trial judge was not able to determine the precise mechanism that caused the cord compression.
However, the trial judge concluded that Dr. Johnston’s actions caused Cassidy’s injuries because of the “close proximity” and time between his attempted forceps delivery and the onset of the fetal bradycardia.
Having concluded that the cord compression and resulting bradycardia were caused by Dr. Johnston’s forceps attempt the judge considered whether Dr. Johnston breach of the “immediately available” standard of care caused Cassidy’s injuries.
The judge found that a reasonable patient in Ms. Ediger’s circumstances would have wanted to be informed of the risks associated with a caesarean section and would have chosen to wait until an anesthesiologist was available.
The British Columbia Court of Appeal conducted an exhaustive review of the authorities with respect to the law of causation in Canada. The court concluded:
 More recently, in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7,  1 S.C.R. 333, Chief Justice McLachlin, for the Court, explained the requirement of a substantial connection between the defendant’s negligent conduct and the plaintiff’s injuries in order to meet the burden of the “but for” test:
 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.]
 In Resurface, the Court rejected the notion that the material contribution test could be a substitute for the “but for” test and reiterated the default test of cause-in-fact as set in Snell, Athey v. Leonati, 1996 CanLII 183 (SCC),  3 S.C.R. 458 at para. 14, Walker Estate v. York Finch General Hospital, 2001 SCC 23 (CanLII),  1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, and Blackwater v. Plint, 2005 SCC 58 (CanLII),  3 S.C.R. 3, 2005 SCC 58 at para. 78 (para. 19). The Court restricted the material contribution test to those situations where it is impossible to determine which of the negligent acts of two or more defendants created an unreasonable risk of the type of injury that the plaintiff experienced (para. 27) or where the “but for” chain of causation is broken by the inability of the plaintiff to prove what a person in the causal chain would have done had the defendant not committed the negligent act or omission (para. 28).
 In Athey, the Court observed that “the courts have recognized that causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury” (para. 15). However, the phrase “material contribution” in this statement from Athey is not synonymous with the “material contribution test” referred to in Resurface. The distinction between the two was explained by Mr. Justice Smith, for the majority, in Sam v. Wilson, 2007 BCCA 622 (CanLII), 2007 BCCA 622:
 “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras 24-29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.
 In this particular case, the material contribution test was not applicable because it was not impossible for the respondent to prove that the appellant’s negligent conduct caused Cassidy’s injuries. The “but for” test of causation required the respondent to establish, on a balance of probabilities, a substantial connection between the risk of harm caused by the appellant’s negligent acts (the breach of the “immediately available” standard of care and/or failure to obtain Mrs. Ediger’s informed consent) and the resulting injuries to the respondent. In other words, in order to succeed, the respondent had to demonstrate that Cassidy’s injuries fell within the type of risk to which Mrs. Ediger was exposed, i.e., the forceps procedure, and that the appellant’s negligent conduct was the cause-in-fact or a “real causa causans” of Cassidy’s injuries.
No Evidence of Alternatives
The Court of Appeal held that no evidence was lead at trial, nor any findings of facts made regarding what delay, if any, could have been avoided if Dr. Johnston had a surgical team “immediately available” or had he obtained Mr. Ediger’s informed consent.
The Court of Appeal stated:
“…absent evidence to support a finding of fact that, but for Dr. Johnston’s breaches of the standard of care, Cassidy would have been delivered earlier then she was and all or part of her injuries would have been prevented or diminished factual causation on the “but for” test was not established.”
The Court of Appeal’s decision concludes with paragraph 102 and 103 of their decision where they state:
“ Medical negligence cases, particularly those involving the delivery a child, can be challenging in many respects. One can only feel sympathy for the tragic consequences that Cassidy has suffered from the injuries she sustained in birth, and for the demanding responsibilities that her parents lovingly provide in meeting her daily challenges. However, the burden of proof in any tort action remains with the party who advances the claim. In my view, that burden was not met on the evidence in this case.
 Absent a causal connection between Dr. Johnston’s attempted forceps delivery and the cord compression with its attendant fetal bradycardia, the respondent’s action cannot succeed. In these circumstances, I am of the view that the appeal must be allowed and the action dismissed.”
Strict Test for Causation
The Ediger decision simply confirms that the courts have adopted a strict test with respect to proving causation in medical malpractice cases.
The less stringent “materially contributed” test espoused by the Supreme Court of Canada in the Athey v. Leonati decision will only be used in limited circumstances.
Simply put, this case confirms that medical malpractice cases remain complicated, risky and difficult to prove.
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