Severe injury to a child is surely one of the most devastating events for a parent, notwithstanding the significant impact on a child’s life. When a catastrophic brain injury occurs at birth, parents and families cannot fail to question whether any failure in the standard of medical care may have caused or prevented the injury.
Infant brain injury may result in permanent neurological damage and/or physical disorders. There are a number of potential causes of infant brain damage including birth asphyxia (oxygen deprivation), physical trauma occurring during the labour, jaundice and infections in the mother’s body. Infants may be deprived of oxygen due to umbilical cord problems, getting stuck in the birth canal and various other complications. Oxygen deprivation, even for a few minutes, may result in cerebral palsy, ADHD (attention deficit hyperactivity disorder), autism or vision problems. Clearly, obstetricians, nurses and doctors involved in a delivery must be diligent in judiciously monitoring and promptly treating fetal distress.
In January 1999, Robert Suwary suffered a catastrophic brain injury due to a disruption of oxygen to his brain. The injury led to a severe form of cerebral palsy (CP) affecting his entire body and exhibiting as physical, communication and learning difficulties. The injury occurred when his umbilical cord was compressed between his head and the uterine wall resulting in an almost complete interruption in oxygen supply. The plaintiffs, which include Robert, his mother, Kimberly Long-Suwary and family members, alleged that their obstetrician committed medical malpractice with respect to the birth and Ms. Long-Suwary’s labour. They contend that the doctor needlessly prolonged Robert’s birth, causing irreversible brain damage, and also that his management of the labour and delivery fell below the standard of care. Clearly, Robert will need both significant lifelong care and familial support. The defence argued that Robert’s injuries were caused by circumstances that were not predictable nor his responsibility, and occurred despite his adherence to appropriate standards of care.
The central issues of this case are causation and whether the applicable standard of care had been met. The issues of damages were resolved by the parties on consent and therefore, not addressed at trial. The trial was by judge alone, with Justice Whitaker presiding.
The plaintiffs contended that the doctor’s care, both before and during labour, fell below the accepted standards of practice and resulted in Robert’s disabilities. Specifically, the plaintiffs argued that the doctor failed to properly consider Ms. Long-Suwary’s medical history, particularly with respect to fetal macrosomia (large fetus). They maintained that the risk of vacuum-assisted delivery with a fetus in the mid-pelvis was inappropriate, and also that there was a lack of consent for vacuum delivery in the labour room. Further, the plaintiffs argued that the doctor delayed in moving Ms. Long-Suwary to the O.R. further putting the labour at risk.
In his defence, it was the doctor’s position that he had Ms. Long-Suwary’s general consent to any procedures associated with the delivery. When a fetal heart rate (FHR) monitor revealed decelerations in Robert’s heart rate, became concerned for fetal well-being; he applied a vacuum extractor, a commonly used tool to reposition the head and draw the baby out. After 3 unsuccessful attempts (which is the maximum within policy guidelines), Ms. Long-Suwary was moved from the delivery room to the O.R., where the FHR returned following forceps rotation. The baby was born with no detectable heart rate, until 6 minutes following birth. The defendant argued that it is within the standard of care, as indicated in hospital and the Society of Obstetricians and Gynecologists of Canada guidelines, to proceed with vacuum delivery in the labour room rather than the O.R. Further, the 8-minute delay in reaching the O.R. before forceps rotation was possible, would have been necessary regardless.
It was evidenced that Ms. Long-Suwary gave her general consent to vaginal delivery in two signed consent forms, indicating consent to all “Operations or Procedures associated with Pregnancy, Labour, Delivery and the Care of her Baby”, which would include vacuum-assisted delivery. As Ms. Long-Suwary previously underwent a vacuum-assisted birth for her daughter, Kylie, also under the doctor’s care, she was aware of this procedure as an option for delivery. The case of Goquen v. Crowe was cited, wherein the plaintiff contended that there was no informed consent for forceps delivery but the claim was dismissed on the basis that the defendant doctor could assume that the plaintiff understood the procedure of forceps delivery of their second child, having already delivered a child by forceps.
Even if the use of the vacuum was appropriate, the plaintiffs argued that the doctor’s decision to proceed with vacuum-assisted delivery in the labour room rather than transferring the mother to the O.R. failed to meet accepted standards of practice. They cited Ms. Long-Suwary’s age, weight, fetal macrosomia and position of the fetal head, along with potential failure of the vacuum, as factors which are predictive of failed vaginal delivery. After lengthy testimony, Justice Whitaker decided that combined expert testimony indicated that the choice of location for the vacuum procedure was one of clinical judgement. It was deemed that these factors, including macrosomia, did not create a risk such that the doctor’s use of the vacuum in the delivery room constituted a breach of the standard of care.
The plaintiff’s charge that the doctor failed to consider Ms. Long-Suwary’s previous infertility problems in his approach to the delivery was rejected as not relevant to increased risk for vacuum-assisted delivery. Although Ms. Long-Suwary’s previous child, Kylie was macrosomic (weighing 10 lbs 1 oz) and suffered from a collapsed lung at birth, Kyle recovered and was a healthy baby. The final judgement agreed with the doctor that evidence did not support the idea that vaginal birth may not have been appropriate given Ms. Long-Suwary’s medical history, and expert opinion for both sides stated that an elective C-section was not indicated. The plaintiff’s charges that the doctor failed to document this as a ‘Risk B’ pregnancy and that there was a failure to properly assess fetal size were also rejected as having no effect on the doctor’s management of the delivery. Justice Whitaker’s conclusions were that the doctor’s delivery plan was appropriate and consistent with the required standard of care.
Expert testimony was provided throughout the trial by four physicians, two of whom testified on behalf of the plaintiffs and two testified for the defence. There is an onus on expert witnesses to remain independent and impartial, and to state opinions in a clear manner. The court proceedings report that three of the expert witnesses displayed the appropriate level of objectivity; however, one of the defence’s experts was perceived as argumentative and defensive on cross-examination and demonstrated an interest in supporting the plaintiff’s arguments. This conduct weakened her contribution as an expert witness throughout the trial, and with regards to her testimony that lateral repositioning will resolve FHR abnormalities, Justice Whitaker did not accept her testimony on this point due to her marked desire to support the plaintiff’s claims. Noteworthy in this case is that the choice and preparation of expert witnesses had a significant impact on the success of arguments.
In conclusion, Justice Whitaker decided that the defendant doctor was not responsible for the injuries Robert sustained during childbirth. The doctor had Ms. Long-Suwary’s informed consent to proceed with vacuum-assisted delivery. Further, Justice Whitaker held that the doctor exercised his professional judgement to determine that the vacuum was the best procedure given Robert’s non-reassuring fetal heart rate at the time. Justice Whitaker was unable to determine, based on the evidence, that application of the vacuum was causal in Robert’s injuries. The action to determine medical negligence was dismissed.
Medical practitioners owe a duty of care to their patients. When injuries are sustained as a result of potential medical negligence, families must contend with the trauma of the injuries, loss, support and rehabilitation issues, as well as questions on where to turn for advice. Medical negligence is a complicated matter and best handled by a legal team with personal injury experience. The Personal Injury Lawyers of Ontario (ILO) law group provides the necessary professional legal advice to help you understand your options and to advocate for your legal rights.