This article is an excerpt from a paper I presented at the national Birth Trauma Litigation conference in Toronto. The paper considers the implications of the Supreme Court of Canada's decision in Ediger (Guardian Ad Litem) v. Johnston.
Eidger involved (among other things) allegations that the defendant failed to meet the appropriate standard of care in not performing a timely C- section.
The arguments in Ediger with respect to the standard of care required for emergency caesarean section are similar to those made more than ten years ago in Commisso v. North York Branson Hospital.
In Commisso, the attending obstetrician made the decision to proceed with an emergency caesarean section after a failed, mid-forceps trial. The time elapsed between the failed forceps attempt and the actual delivery of the baby was 17 minutes.
The plaintiffs argued the infant could have been delivered more quickly if the mid-forceps trial had been conducted in OR with a double set-up. The plaintiffs relied upon scientific literature that established permanent brain damage results from asphyxia lasting 10 minutes or more.
10 Minute Standard?
The plaintiffs claimed therefore, that any reasonable standard of care had to ensure that delivery of the baby could take place within the ten-minute time frame before permanent damage was certain.
In Commisso, the Trial Judge rejected the plaintiffs’ argument of a double set-up standard and refused to recognize a ten minute standard for emergency c-sections. Instead, the Ontario Court of Appeal stated that the appropriate standard of care as follows:
“Where a fetus is at risk … the doctor must move as expeditiously as possible to deliver the baby, having due regard for the safety of both patients—baby and mother.”
Ediger (Guardian Ad Litem) v. Johnston
One of the issues discussed by the Supreme Court of Canada in Ediger is whether the trial judge erred by concluded that the defendant, Dr. Johnston, failed to arrange for an “immediately available” surgical back-up.
The Plaintiffs argued that before proceeding with a mid-level rotational forceps delivery, the standard of care required that the procedure be undertaken in an operating room with a surgical team standing-by in the event that the forceps procedure was unsuccessful (“double set-up”). This would allow full delivery within 2 to 5 minutes of a failed forceps attempt. The trial judge specifically rejected this standard.
In the alternative, the plaintiffs argued Johnston failed to meet the standard of care by not ensuring that a surgical team was “immediately available” in the event of an emergency caesarean section was required. This standard was consistent with the guidelines of the Society of Obstetricians and Gynaecologists of Canada.
30 Minute Standard?
The defendant Johnston argued the standard of care was met by the so called "thirty-minute rule" which required a back-up surgical team to be available within 30 minutes of the decision to proceed with an emergency C-section.
Johnston argued that the standard of care required that an anesthesiologist be standing by (immediately available), but claimed that even if an operative team had been standing by in this particular situation, the plaintiff’s injuries could not have been prevented.
Standard Must be Responsive to Risk
It is well established that the degree of care required is commensurate with the potential danger to the patient. See for example Badger v. Surkan, a decision of the Saskatchewan Court of Appeal.
The Supreme Court of Canada in Ediger clearly stated the standard of care must be responsive to the risk in question and the potential harm arising from it.
The Supreme Court soundly rejected Johnston’s circular standard of care argument, finding the defendant was arguing for a standard of care that could never prevent the harm it was supposed to guard against.
“The problem with the standard of care, as interpreted by Dr. Johnston, is that it would be unresponsive to the risk in question and potential harm arising from it. … Dr. Johnston’s interpretation of “immediately available” standard of care would mean that the attending physician would never be liable for breaching the standard where fetal bradycardia results and leads to debilitating injury.”
The Supreme Court of Canada went on to say:
“… We have no difficulty concluding that the trial judge contemplated a standard of care that would have been responsive to the recognized risk of fetal bradycardia associated with mid-level forceps deliveries.”
The Supreme Court referred to “the undisputed evidence” that a baby begins to suffer injury approximately 10 minutes from the onset of bradycardia.
The Supreme Court of Canada stated at paragraph 53 of its decision:
“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.”
Is a New Standard Necessary?
I would suggest there is universal agreement in the scientific and medical communities that permanent brain damage results when fetal bradycardia lasts longer than 10 minutes.
The Supreme Court of Canada has stated that the standard of care must be responsive to the risk in question and the potential harm arising from it. Doctors are required to provide a reasonable standard of care.
Reasonable, in this context means care based on a reasonable response to the patients clinical circumstances.
Any reasonable person, physician or otherwise, would say that if you know fetal bradycardia will cause brain damage after more than 10 minutes, then any standard that advocates for a time to delivery longer than 10 minutes is not responsive to the risk of harm.
Physicians will argue that in every hospital in Canada the 30 minute "rule" from decision to incision is the current standard of care.
But remember, the Supreme Court of Canada said in Ter Neuzen v. Korn that if the standard of care itself is negligent, the court can reject the standard.
Is 10 Minutes the New Standard?
Isn’t the inevitable conclusion that, in circumstances where fetal bradycardia is likely, the standard of care requires the attending physician be in a position to proceed with an emergency caesarean section in 10 minutes or less?