A.T.-B. v. Mah, 2012 ABQB 777

Court of Queen ’ s Bench of Alberta Citation: A.T.-B. v. Mah, 2012 ABQB 777 Date: 20121219 Docket: 0303 10430 Registry: Edmonton Between: A.T.-B., an Infant by Her Next Friend, A.-L.T.-B., A.-L.T.-B., A.B., and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Dr. May Sue Mah Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ I. Introduction and Overview......................................................................................... Page: 6 A. The Legal Action............................................................................................ Page: 6 B. The General Timeline...................................................................................... Page: 7 1. The Pregnancy.................................................................................... Page: 7 2. The May 22, 2001 Examination by Dr. Mah.......................................

Page: 8 3. The Missed June 5, 2001 Appointment............................................... Page: 9

3. A. ’ s Delivery on June 12, 2001........................................................... Page: 9 C. A. ’ s Injuries and Condition........................................................................... Page: 13 D. Issues for Trial.............................................................................................. Page: 13 II. Preliminary Issue - Did A. Experience Reduced Fetal Growth and Development as a Consequence of Intrauterine Growth Restriction [ “ IUGR ” ]?................................................................ Page: 14 A.

Intrauterine Grown Restriction...................................................................... Page: 15 B. Was A. an IUGR Fetus?................................................................................ Page: 16 C. Conclusion - A. was an IUGR Fetus.............................................................. Page: 18 III. Duty of Care............................................................................................................. Page: 18 IV. Standard of Care....................................................................................................... Page: 18 A.

Law............................................................................................................... Pag e: 19 B. Evidence....................................................................................................... Page: 19 1. Facts Not In Dispute.......................................................................... Page: 20 a. May 22, 2001........................................................................ Page: 20 b. June 5, 2001......................................................................... Page: 21 c.

June 12, 2001....................................................................... Page: 21 2. Witness Testimony............................................................................ Page: 22 a. Ms. T.-B................................................................................ Page: 22 i. May 22, 2001............................................................ Page: 22 ii. June 5, 2001............................................................. Page: 23 iii. June 12, 2001........................................................... Page: 23 b.

M.T....................................................................................... Page: 24 c. Mr. B..................................................................................... Page: 25 d. R.T........................................................................................ Page: 26 e. Cynthia Baerg....................................................................... Page: 26 f. Dr. Mah................................................................................. Page: 26 i. May 22, 2001............................................................ Page: 27 ii.

June 5, 2001............................................................. Page: 28 iii. June 12, 2001........................................................... Page: 28 3. Expert Testimony - Standard of Care................................................ Page: 32 a. May 22, 2001 Examination................................................... Page: 32 b. When Should the Follow-Up Examination Occur?................ Page: 33 c. What is the Appropriate Response to a Patient who Missed an Appointment? Page: 34 d. Dr. Mah ’ s June 12, 2001 Supervision of the Delivery........... Page: 34 i.

Interpretation of A. ’ s Fetal Heart Monitor Data......... Page: 34 ii. Dr. Mah ’ s Supervision of the Delivery...................... Page: 37

4. Witness Testimony - Findings of Fact and Credibility....................... Page: 39 a. May 22, 2001 Appointment - Reduced Fetal Movement....... Page: 39 b. May 22, 2001 Appointment - The Ultrasound Request......... Page: 40 c. June 12, 2001 - Did Ms. T.-B. Reject Caesarian

Section Delivery? Page: 41 C. Was the Standard of Care Met?..................................................................... Page: 45 1. May 22, 2001.................................................................................... Page: 45 a. Dr. Mah ’ s Examination......................................................... Page: 45 b. The Urine Cup Date.............................................................. Page: 47 2. June 5, 2001..................................................................................... Page: 47 3.

June 12, 2001................................................................................... Page: 48 D. Conclusion - Standard of Care...................................................................... Page: 49 V. The Immediate Consequences of Dr. Mah ’ s Negligence........................................... Page: 49 A. The Missed June 5 Appointment................................................................... Page: 50 1. Absent Dr. Mah ’ s Negligence, Ms. T.-B.

Would Be Examined On or Soon After June 5, 2011.......................................................................................................... Page: 50 2. The June Appointment Would Determine A. Experiencing IUGR.... Page: 50 3. Diagnosis of IUGR Would Lead To Early Delivery by Caesarian

Section Page: 51 B. Earlier Caesarian

Section Delivery on June 12, 2001.................................... Page: 52 C. Conclusion - Effect of Dr. Mah ’ s Negligence................................................ Page: 52 VI. Causation.................................................................................................................. Page: 53 A. The Law........................................................................................................ Page: 53 1. Injury................................................................................................ Page: 53 2.

Causation.......................................................................................... Page: 54 B. The Evidence and Analysis........................................................................... Page: 55 1. Accepted and Established Facts........................................................ Page: 55 2. Dr. Kenneth Poskitt........................................................................... Page: 58 a. Expertise............................................................................... Page: 58 b. Evidence...............................................................................

Page: 59 c. Credibility and Reliability..................................................... Page: 60 d. Conclusion............................................................................ Page: 61 3. A. ’ s Injury Occurred Prior and Proximal To Birth............................. Page: 62 a. Was the Injury Incurred After Birth?..................................... Page: 62 b. When Did the Injuries Occur Prior to Delivery?.................... Page: 63 i. Amniotic Fluid.......................................................... Page: 64 ii. Umbilical Cord Blood Measurements........................ Page: 65 iii.

Multiple Organ Dysfunction...................................... Page: 67 iv. Other Indicia............................................................. Page: 68

c. Conclusion - The Period of Low Oxygen Supply Occurred Between 4:00 to5:10 p.m............................................................................................... Page: 68 VII. Contributory Negligence........................................................................................... Page: 72 A. The Missed June 5, 2001 Appointment......................................................... Page: 72 B. Reports of Fetal Movement........................................................................... Page: 72 C.

The Advent of Vaginal Bleeding................................................................... Page: 72 D. Delay in Travel to the Misericordia Hospital on June 12, 2001..................... Page: 72 E. Ms. T.-B. Insisted on Vaginal Delivery......................................................... Page: 73 VIII. Damages................................................................................................................... Page: 73 A. Preliminary Issues - A. ’ s Present and Future State......................................... Page: 73 1.

Physical Condition............................................................................ Page: 74 a. Neurological State and Function........................................... Page: 74 b. Skeleton and Musculature..................................................... Page: 76 2. Psychological State and Mental Function.......................................... Page: 77 a. Dr. John Keegan................................................................... Page: 77 b. Dr. Diane Hinves.................................................................. Page: 79 c. Dr.

Martin Mrazik................................................................. Page: 82 d. Dr. Lyle McGonigle.............................................................. Page: 82 e. Dr. Christine Kyriakides........................................................ Page: 83 f. Helen Jones........................................................................... Page: 83 g. Other Professionals............................................................... Page: 83 3. Care Requirements............................................................................ Page: 84 4.

Life Expectancy................................................................................ Page: 86 a. The Effect of Cerebral Palsy and Body Size.......................... Page: 86 b. Historic and Projected Patterns of Life Expectancy Change.. Page: 87 5. A Day in A. ’ s Life............................................................................. Page: 88 A. The “ Morning Routine ” ......................................................... Page: 88 B. Going to Bed......................................................................... Page: 90 C.

Home Activities.................................................................... Page: 90 D. Observations......................................................................... Page: 91 B. Law of Damages........................................................................................... Page: 92 C. General Damages.......................................................................................... Page: 92 1. A.T.-B............................................................................................... Page: 92 A.

Is the Grand & Toy Maximum for a Worst Case Scenario or an Award Ceiling.............................................................................................. Page: 93 B. A. ’ s Reduced Quality of Life................................................. Page: 95 2. Ms. T.-B. and Mr. B.......................................................................... Page: 98

D. Past Care and Expenses................................................................................. Page: 98 E. Future Care................................................................................................... Page: 99 1. A. ’ s Care Objectives.......................................................................... Page: 99 a. A. ’ s Resources are Finite..................................................... Page: 100 b. A. ’ s Physical Health is a Priority......................................... Page: 101 c. Formal Education Has No Practical Purpose....................... Page: 102 d.

A. ’ s Dependance on Others................................................. Page: 102 e. Parental Direction................................................................ Page: 103 f. Conclusion - Care Objectives.............................................. Page: 104 2. Contrasting Care Schemes............................................................... Page: 104 a. The Multidisciplinary Team Approach................................ Page: 104 b. Defendant Position.............................................................. Page: 106 i.

Kathy Phillips.......................................................... Page: 106 ii. Dr. Christine Kyriakides.......................................... Page: 106 c. Conclusion.......................................................................... Page: 106 3. Specific Care Requirements............................................................ Page: 108 a. Professional Services........................................................... Page: 108 i. Physical Therapy..................................................... Page: 109 ii. Speech Language Pathology Therapy..................... Page: 109 iii.

Occupational Therapy............................................. Page: 111 iv. Psychological Counselling and Services................. Page: 111 v. Financial Management............................................ Page: 112 vi. Rehabilitation and Care Management...................... Page: 114 b. Physical Aids and Tools...................................................... Page: 114 i. Bathing, Personal Care, and Daily Living Resources Page: 114 ii. Pharmaceuticals...................................................... Page: 114 iii. Other Medical Costs................................................ Page: 115 v.

Orthotics and Crutches............................................ Page: 116 vi. Adapted Bicycle...................................................... Page: 116 vii. Walker.................................................................... Page: 117 viii. Wheelchair.............................................................. Page: 117 ix. Household Furniture and Supplies.......................... Page: 117 4. Housing.......................................................................................... Page: 118 a. Admitted Evidence and Opinion......................................... Page: 118 b. Does A.

Need a Dedicated Residence?............................... Page: 119 c. What Are Preferred Characteristics of the Modified Home? Page: 119 d. The Cost of the Modified House......................................... Page: 120 5. In-Home Care Arrangement............................................................ Page: 122

a. Caregiving Options............................................................. Page: 122 i. A. Requires 24-Hour Care....................................... Page: 124 ii. A. ’ s Supervision May Be Provided by Non-Specialists Page: 124 b. In-Home Care from Present up to Age 18........................... Page: 126 c. In-Home Care from Age 18 Onward................................... Page: 127 E. Economic Losses and Factors..................................................................... Page: 128 1. Loss of Future Income.................................................................... Page: 129 a.

Should A. ’ s Loss be Calculated by Gender?........................ Page: 129 i. Plaintiffs ’ Argument and Expert Evidence............... Page: 129 ii. Defendant ’ s Argument and Expert Evidence........... Page: 130 iii. Analysis and Conclusion......................................... Page: 130 b. What Degree Would A. Obtain?.......................................... Page: 131 2. Loss of an Opportunity to Marry..................................................... Page: 131 3. Ms. T.-B. ’ s Loss of Income............................................................. Page: 1 34 a.

Loss of Future Income........................................................ Page: 134 b. Loss of Past Income............................................................ Page: 135 IX. Conclusion.............................................................................................................. Page: 135 X. Costs....................................................................................................................... Page: 136 I. Introduction and Overview A. The Legal Action [ 1 ] A.T.-B. [“A.”] was born by caesarian

section on June 12, 2001. A. and her parents, A.-L.T.-B., [“Ms. T.-B.”] and A.B. [“Mr. B.”], claim that Dr. May Sue Mah [“Dr. Mah”], an Edmonton obstetrician and gynecologist, was negligent in the manner Dr. Mah provided care in the period prior to A.’s birth [the “prenatal period”], and during the delivery process [the “perinatal period”]. They allege that as a result of Dr. Mah’s negligence, A. experienced a period of reduced oxygen supply, a “hypoxic-ischemic insult”, that caused permanent and severe brain injury. [ 2 ] A.’s condition is well defined.

Her nervous system injuries have resulted in quadriplegic spasticity and severe developmental delays. While A. is mobile and responsive, the neurological damage is of a kind and extent that A. will require ongoing care and supervision on a minute-by-minute basis for the rest of her life. It is clear that she will never be gainfully employed, has an extremely restricted ability to learn, and has and will require assistance in the most basic of her personal activities. [ 3 ] A.’s claim for damages is $15,000,000.00.

That includes loss of earning capacity, loss of the economic advantages of marriage, past and future cost of care, and the expenses to manage her remaining life activities. She also seeks damages for pain,

suffering, and loss of enjoyment of life. [ 4 ] A.’s primary caregivers from birth onward are her parents. She is their only child. Both are trained psychologists. After A.’s birth, her mother has largely stayed at home to provide care for her daughter. Mr. B. continued his professional activities. [ 5 ] Both parents advanced claims for general damages and pecuniary general damages, though only Ms. T.-B.’s claim for a loss of earnings was pursued at trial. In 2001 she needed further training to be eligible for registered psychologist status, and had planned to continue her education and obtain a PhD.

She claims this delay in her professional career is a basis for damages. [ 6 ] Dr. Mah denies any negligence on her part, disputes that she caused A.’s injuries, and disputes the quantum of damages claimed by the Plaintiffs. [ 7 ] A number of other Defendants were initially named in this action, including nurses who assisted with Ms. T.-B.’s perinatal care, and Misericordia Community Hospital [the “Misericordia Hospital”]. The action against those Defendants was settled prior to trial. The consequences of that settlement will be addressed following this decision.

The Crown is a Plaintiff in this action to recover historic and ongoing health care costs, as authorized in the Hospitals Act , R.S.A. 2000, c. H-12. The Crown was not represented nor did it make submissions. B. The General Timeline [ 8 ] Much of the documentary evidence that forms the general background of this dispute was uncontroversial. Similarly, the witnesses agreed on much of what transpired. 1. The Pregnancy [ 9 ] A. was conceived in late September, 2000. At that time Ms. T.-B. had recently completed a Master’s degree in psychology, and was practising as a family counsellor in Edmonton.

She was separated from her then husband, and was in a relationship with her future husband, Mr. B.. Mr. B. was also a psychologist practising in Edmonton. The two had met during their post-secondary studies in Loma Linda, California. [ 10 ] This was Ms. T.-B.’s first and only pregnancy. Once she suspected she was pregnant she used home pregnancy tests to evaluate that possibility. She then sought confirmation of her status from a medical doctor. As she was unable to make timely arrangements to see her family doctor, Dr. Victoria Cho [“Dr. Cho”], Ms. T.-B. went to a medicentre on December 1, 2000.

Examination there via ultrasound confirmed that Ms. T.-B. was pregnant. The doctor who examined Ms. T.-B., Dr. Campbell, took her history, and noted no concerns with either the mother or the fetus. [ 11 ] The ultrasound examination led to an estimate that the fetus would be delivered on July 1, 2001, the “estimated confinement date”. [ 12 ] Ms. T.-B. then returned to Dr. Cho for care. She first saw Dr. Cho on February 2, 2001. Dr. Cho has little or no independent recollection of any of the prenatal visits by Ms. T.-B., but from her records and usual practices she could comment on what had occurred. Dr.

Cho examined the ultrasound report. One of her nurses weighted Ms. T.-B., tested her urine for glucose, and took her blood pressure. Dr. Cho physically examined Ms. T.-B., recorded the fetal heart rate and measured the symphysis fundal height. That measurement, done using a tape measure, measures the distance from the top of the symphysis, a location on the pubic bone, to the top of the uterus. This measurement is a rough estimate for fetal growth, as there is a general correlation between the fundal height in centimetres and the age of the fetus in weeks. [ 13 ] By the time of the first appointment with Dr.

Cho, Ms. T. was detecting fetal movement. Dr. Cho noted that information on the chart, testifying that checking off the “FM” box on the chart indicated that the mother had reported feeling typical fetal movement.

Ms. T.-B.’s pregnancy and health appeared normal. [ 14 ] In Alberta, prenatal care information is recorded on a standard form, the “Alberta Prenatal Chart” [the “Chart”], which is intended to track the development of a fetus and the health of the mother during the pregnancy. The Chart records the mother’s health history, her weight, blood pressure, the fetal heart rate, the fundal height, and maternal blood glucose levels. This is the document that had the “FM” fetal movement check-box.

The Chart is a generally comprehensive record of a pregnancy, and is a reference for any involved hospital and attending medical personnel. Additions to the Chart are made on all visits with the doctor present. [ 15 ] A second prenatal examination with Dr. Cho occurred on March 16, 2001 and followed the same procedure. Again, no concerns were noted, and the pregnancy appeared to be proceeding without any concerns. [ 16 ] Ms. T.-B. missed an appointment scheduled for April 20, 2001. That was rebooked for April 27, 2001.

On this occasion the only potential anomaly was that the fundal measurement, 29 cm. at 31 weeks, was atypically small. Since Dr. Cho did not deliver babies, Ms. T.-B. was referred to an Edmonton-area obstetrician, Dr. Mah. Dr. Mah was one of several obstetricians to whom Dr. Cho referred her patients. [ 17 ] An appointment with Dr. Mah was arranged for May 22, 2001. Dr. Cho sent a referral letter to Dr. Mah, indicating that the pregnancy had been progressing well to date, with no apparent concerns. I observe at this point that the obstetrician experts who testified generally agreed that Ms.

T.-B.’s prenatal observation, prior to May 22, was less frequent that is optimal. [ 18 ] Ms. T.-B. was complimentary of Dr. Cho’s conduct during her pregnancy, and felt that Dr. Cho had spent an appropriate amount of time with her, answering questions and providing information. [ 19 ] It would be a fair observation that Ms. T.-B. had, to that time, been somewhat relaxed about her pregnancy. She felt well and with the exception of a minor worry that she had not been ‘getting as big’ as she expected, she seemed to have no concerns.

Her attention to the apparent size of her pregnancy flowed from the observations of friends and family, who stated that she was not ‘showing’ her pregnancy very much. I believe that objectively these comments were more complimentary than an expression of alarm. Ms. T.-B. was certainly not alarmed or concerned. [ 20 ] According to Ms. T.-B., she had asked Dr. Cho for a letter of some sort clearing her for air travel to Victoria. Her sister R. had arranged for the two of them to have a brief holiday together in late April or early May. At trial, Ms.

T.-B. testified that it was following this trip that she felt there had been a change in the frequency and intensity of fetal movement. [ 21 ] At some stage during the pregnancy, Ms. T.-B. and Mr. B. met with a doula, a private birthing consultant, on R.’s suggestion and at R.’s expense. R. wanted to do something for her sister during the pregnancy, and offered to fund the cost of a doula. After a brief introductory session, neither prospective parent was interested in further pursuit of that opinion. Ms. T.-B. preferred ‘conventional’ hospital care and delivery. 2. The May 22, 2001 Examination by Dr.

Mah [ 22 ] Dr. Mah examined Ms. T.-B. on May 22, 2001 and concluded then that the pregnancy was unexceptional. Dr. Mah has no memory of this visit. Ms. T.-B. described certain aspects of the examination in detail. She testified that she was surprised at how busy Dr. Mah’s waiting room was, and said it was full of pregnant women at various stages of pregnancy. Ms. T.-B. was weighed and had her blood pressure taken by a nurse, and she provided a urine sample. She was placed in an examination room where she undressed and prepared for a physical examination by Dr. Mah.

She remembers few details of that examination, other than she felt rushed. [ 23 ] Ms. T.-B. testified that she had planned at the May 22 appointment to discuss her concerns with her small size and changes in her perception of fetal movement with Dr. Mah. However, she felt rushed, and testified that she only told Dr. Mah of these concerns as Dr. Mah was leaving the examination room. She says that she asked if she could have an ultrasound, but Dr. Mah pointed to a sign on the

examination room door to the effect that ultrasounds would not be ordered on request. Dr. Mah then left. The presence of the sign referred to by Ms. T.-B. is controversial, and was the subject of much testimony. 3. The Missed June 5, 2001 Appointment [ 24 ] Ms. T.-B. then dressed, and went to the reception desk to arrange the next appointment. She testified that she was handed a urine specimen cup. When Ms. T.-B. asked the date of her next appointment, the receptionist pointed to a date on the cup. That cup, which was entered as an exhibit at trial, had a date, “June 15", written on it. [ 25 ] According to Dr.

Mah’s chart, the appointment was recorded in her clinic as being for June 5, which would have been two weeks from May 22. All experts and Dr. Mah testified that the standard period between appointments would be two weeks. June 5 is exactly two weeks after May 22. There was no dispute that the follow-up appointment was scheduled for June 5, 2001, but that Dr. Mah’s receptionist erred in instructing that Ms. T.-B. next attend Dr. Mah on June 15, 2001 and by writing that date on the specimen cup. [ 26 ] Unsurprisingly, Ms. T.-B. did not appear at the June 5, 2001 appointment.

That failure to appear was noted in her chart. No steps were taken by Dr. Mah or her office to contact Ms. T.-B. and find out why she had not attended on June 5, or to book a new appointment. Ms. T.-B. believed her appointment was for June 15, and did not appear concerned about the length of time between appointments at the time of the May 22 appointment. [ 27 ] Ms. T.-B. was dissatisfied with her May 22 examination with Dr. Mah. She testified that she felt Dr. Mah had not spent enough time with her, and had not allayed her concerns about her small size and perceptions of reduced fetal movement.

After May 22 she contacted Dr. Cho to discuss this. When Dr. Cho phoned her back, and Ms. T.-B. relayed her concerns, Dr. Cho said that Ms. T.-B. could trust Dr. Mah. Ms. T.-B. says she was reassured by that. 3. A. ’s Delivery on June 12, 2001 [ 28 ] Late in the evening of June 10, or in the early morning hours of June 11, Ms. T.-B. testified she felt there was a further change in fetal movement, both as to frequency and intensity. She did nothing to investigate those concerns at the time, and did not mention them to anyone. [ 29 ] When she woke up on Tuesday, June 12, 2001, Ms.

T.-B. observed that minor vaginal bleeding had stained her underwear. It was bright red in colour. She phoned Dr. Mah’s office and told the receptionist what happened. Dr. Mah called her back soon afterwards, told her to go to the Misericordia Hospital, and gave instructions where to go in the hospital once she arrived. Parts of this timeline are vague as it is unclear as to exactly what time Ms. T.-B. awoke that morning. She testified that she was in the habit of sleeping in, and her appointments were scheduled for afternoons. Mr.

B. also had no morning appointments that day. [ 30 ] In looking at the time of arrival at the hospital (1:15 p.m.), and working backwards, it is likely that Ms. T. awoke sometime before 11:00 a.m., but not much earlier. She told Mr. B. about the bleeding and Dr. Mah’s instructions to get to the hospital. They had a discussions about whether Mr. B. would drive her to the hospital, but ultimately he left for work and Ms. T.-B. was to make her own way to the hospital. Before leaving for the hospital Ms.

T.-B. telephoned her sister, mother, and her friend Cynthia Baerg. [ 31 ] Allowing for half an hour to drive to the hospital, park, and find her way to admissions, Ms. T.-B. left her residence at around 12.45 p.m. It is obvious from this analysis that Ms. T.-B. did not treat this situation as urgent. [ 32 ] The hospital admissions record shows that Ms. T.-B. was first seen at 1:55 p.m. That record indicates that she reported some vaginal bleeding and “no fetal movement since Sunday.” That last notation is apparently inaccurate, rather Ms.

T.-B. testified she said that she had detected reduced movement. [ 33 ] A fetal heart rate monitor was immediately put on Ms. T.-B.. This device records fetal heart beat rate and uterine contractions.

Throughout the trial experts referred to information from this device as a “non-stress test”, as use of the monitor creates no measurable risk to either the mother or the fetus. For clarity I will generally avoid the “non-stress test” language and specifically refer to information acquired by a fetal heart monitor as such. [ 34 ] Dr. Mah was in surgery when Ms. T.-B. arrived at the hospital. At 2:20 p.m. one of the nurses took a portion of paper that recorded the monitor’s information, what medical personnel called “a strip”, to Dr. Mah in the operating theatre for her review. Dr.

Mah has no recollection of that, and based her testimony on her usual practices and the documentary evidence. [ 35 ] After review of the strip, at 2:22 p.m. Dr. Mah instructed that the nurse put Ms. T.-B. on an intravenous saline drip and instructed that she not be allowed to eat or drink anything (“NPO” or “ non per orum ” - nothing by mouth). Ms. T.-B. was told that she was being prepared for an emergency caesarian section, and these steps are consistent with that objective. [ 36 ] About this time Ms. T.-B. telephoned Mr. B. at work but reached his assistant.

His assistant eventually told him he should come to the hospital. Mr. B. called Ms. T.-B. shortly after that, and was told that she was being prepared for a caesarian

section delivery. [ 37 ] The monitoring continued. Ms. T.-B. became concerned when an alarm sounded on the fetal heart rate monitor, but that apparently occurred only once during this period. At some stage M.T., her mother, arrived at the hospital, and joined Ms. T.-B. in her hospital room. [ 38 ] Mr. B. then arrived, and testified that he was surprised to see that delivery had not already occurred. He expected from the information that Ms. T.-B. had given him by telephone that delivery was imminent. He went to the washroom, and when he returned found Ms. T.-B. talking to a woman he later learned was Dr.

Mah. [ 39 ] The timing of Mr. B.’s arrival is controversial, and there was much testimony about whether he was present when Dr. Mah saw Ms. T.-B. at 3:25 p.m. [ 40 ] Dr. Mah arrived at Ms. T.-B.’s hospital room at approximately 3:25 p.m. She examined the fetal heart monitor record. At this point testimony diverges. [ 41 ] Dr. Mah says that she considered the fetus to be in distress, and wanted to immediately delivery the baby via caesarian section. She testified that Ms. T.-B. objected to that plan, and insisted on vaginal delivery. Dr. Mah described the situation in the room as “electric”.

She testified that labour could be tried to see how that process was tolerated by the fetus. She says she warned Ms. T.-B. that this alternative could harm the fetus, but that Ms. T.-B. insisted on attempting a non-surgical mode of delivery. [ 42 ] Ms. T.-B.’s testimony on the events around 3:25 p.m. is different, and she was not cross-examined on Dr. Mah’s version of events. [ 43 ] In any event, Dr. Mah ordered that labour be induced by administration of a drug, syntocinon, that was added to the intravenous saline drip. Dr.

Mah at trial called this procedure a “stress test”, though it was not described in any hospital records as such. The attending nurses were instructed to commence this procedure, and to continue to monitor the fetal heart rate and Ms. T.-B.’s contractions. The drug was administered from 4:00 p.m. to 5:15 p.m. [ 44 ] At 5:20 p.m. Dr. Mah was apparently notified that the drug-induced contractions had been stopped. Dr. Mah attended on Ms. T.-B. at 5:30 p.m. On review of the fetal heart rate monitor data Dr. Mah concluded that the fetus was in distress and recommended to Ms. T.-B. and Mr.

B. that there be an immediate caesarian section. Dr. Mah testified that she provided them with a consent form, and left the room so that Ms. T.-B. and Mr. B. could discuss her recommendation. When she returned, the form was signed. [ 45 ] The caesarian

section procedure began at 6:06 p.m. and A. was delivered at 6:30 p.m.

[ 46 ] Mr. B. testified that immediately after A. was born he was shocked to see how small she was. He was allowed to hold her after she had been wrapped, and he carried her to the nursery. [ 47 ] From the hospital records it appears that A. required some assistance breathing and was “masked” for 30 seconds to two minutes, depending on which record is correct.

It is clear from the documentary record that while A.’s “Apgar” scores, a general measure of newborn health, were found to be normal shortly after her birth, she began to experience difficulties in the following hours. [ 48 ] Examination of blood in her umbilical cord showed that A. had an unusually low blood-glucose level, “hypoglycemia”, and she was given formula and eventually dextrose to address that condition.

A. began to have seizures. [ 49 ] Ultimately A. was stabilized, and in the morning she was transferred to the Royal Alexandra Hospital [the “Royal Alex”] where she was admitted to a neonatal intensive care unit. She remained at that institution until June 18, 2012. The Misericordia Hospital discharge

summary indicates: This term infant was transported to the [Royal Alex Hospital] Neonatal Intensive Care Unit at one day of age for the assessment and treatment of seizures. She was born to a 34 year old primigravida mother after a pregnancy complicated by decreased fetal movements. The mom was induced but this failed, and so the infant was delivered by c-section. The baby emerged mildly depressed with Apgars of 6 and 9 at one and five minutes of age and required Narcan and IPPV for good response.

After birth she developed hypoglycemia, apnea, and seizures, and so was intubated, given Phenobarbital, and underwent a sepsis work-up before being transferred to our NICU for further care. The infant was admitted and the antibiotics given were continued until cultures were negative. Admission physical examination was consistent with moderate hypoxic-ischemic encephalopathy. Initially the infant was hypotensive and had a mild coagulopathy and this was treated with Dopamine and cryoprecipitate respectively.

In the first 24 hours after admission seizures were a problem, but were finally controlled with addition of Dilantin and Valium. An EEG demonstrated burst suppression and a CT of the head was unremarkable. The baby was subsequently extubated and the Dopamine and anticonvulsants discontinued. Feeds were then started and advanced without incident. The infant is being transferred to the care of Dr. Davidson at the Misericordia for the remainder of her hospitalization.

Finally, we did note that the newborn screen is pending and the last CBC continued to show a thrombocytopenia and we had planned to follow this carefully. DISCHARGE DIAGNOSES 1. Sarnat Stage II hypoxic ischemic encephalopathy 2. Seizures - revolved 3. Sepsis work-up - negative 4. Coagulopathy - resolved 5. Thromboctyopenia

C. A. ’s Injuries and Condition [ 50 ] The full extent of A.’s injuries and the resulting problems took some time to become apparent, though the fact she had experienced neurological injury was identified soon after her birth. She was initially diagnosed as having trepelegic spasticity (spasticity involving three limbs), cerebral palsy, and developmental delays. More recently, her pediatrician, Dr. Lyle McGonigle, described A. as having quadriplegic spasticity as all four of her limbs are affected. A.’s spasticity is most pronounced in her legs and left arm, although she has some spasticity in her right arm.

Her fine motor control in both hands is compromised. [ 51 ] There is no dispute that A. is severely disabled as a consequence of the limb spasticity, cerebral palsy, and developmental delays. She is now 11 years old. Her mobility is significantly affected. She has highly reduced speech and communication skills, and her cognitive abilities are very limited. She will never be able to live or function independently, and will require ongoing 24 hour a day care for the remainder of her life. She has no capacity to engage in paid employment. D. Issues for Trial [ 52 ] This lawsuit addresses whether Dr.

Mah, the sole Defendant, was negligent and caused A.’s brain injuries. The Plaintiffs allege that negligence occurred at a number of points: 1. during the May 22, 2001 examination, where Dr. Mah allegedly failed to detect indicia that Ms. T.-B.’s fetus was undergoing growth restriction and stress; 2. when Dr. Mah failed to take appropriate steps in response to Ms. T.-B.’s failure to appear at the scheduled June 5, 2001 appointment; and 3. during the June 12, 2001 pre-delivery period when Dr. Mah erred in attempting an induced vaginal delivery, when an immediate caesarian

section was appropriate. [ 53 ] Dr. Mah disputes she did anything wrong. [ 54 ] As I will later discuss, there is clear evidence that in the weeks before her birth A. experienced restricted nutrition and stress. That raises a second issue: whether A.’s neurological damage occurred prior to her delivery, so that Dr. Mah’s actions on June 12, 2001 did not cause some or all of A.’s injury. [ 55 ] Last, there is a question of damages. A.’s injuries are severe. Without question, she requires extensive, continuous, and ongoing supervision throughout her life. She is not able to care for herself.

A.’s condition is permanent, and there is no basis to anticipate improvement that could lead to an independent life. [ 56 ] While that fact is not in dispute, the parties differ greatly on the extent and kind of care that A. should receive to ‘cure’ Dr. Mah’s alleged negligence. This dispute has a philosophical aspect. The Plaintiffs argue that A., as a child, should receive the kind of care that maximizes her albeit limited personal potential to live an independent, self-directed life.

They say that means she should receive care following a sophisticated plan delivered by a multidisciplinary team of experts privately employed to care for A. in her own residence. [ 57 ] The Defendant argues that fails to account for care available from state-funded institutions and programs. Further, Dr. Mah argues what could be described, in a perhaps clinical manner, that on a cost-efficacy basis the proposed ongoing care scheme is simply unrelated to the possible benefit that A. might receive. Simply put, what the Plaintiffs propose is very expensive, and offers restricted, if not negligible, return.

[ 58 ] This judgment will evaluate the evidence and arguments of both parties in a series of steps: 1. whether prior to birth A. experienced a condition known as intrauterine growth restriction [“IUGR”]; 2. whether Dr. Mah was negligent in her management of Ms. T.-B.’s pregnancy and/or A.’s delivery; 3. if Dr. Mah was negligent, did that negligence lead to some aspect of A.’s neurological injuries; and 4. what damages awards are appropriate for any negligent injury caused to the Plaintiffs by Dr.

Mah. [ 59 ] As a preliminary note, the parties in this action provided extensive and helpful written pre-trial briefs, post-trial written and oral argument, and a wide array of case law and legal authorities. I have reviewed all that material but in the judgment will only make reference to those items and aspects that I find necessary to discuss. II. Preliminary Issue - Did A. Experience Reduced Fetal Growth and Development as a Consequence of Intrauterine Growth Restriction [ “IUGR ”]? [ 60 ] Analysis of the potential liability of Dr. Mah requires a number of steps, and many factual conclusions.

I believe it is helpful to start that analysis on a single question of fact from which many ‘downstream’ analyses and conclusions flow. That is whether A., as a fetus, experienced reduced growth and development as a consequence of intrauterine growth restriction. [ 61 ] IUGR was addressed to various degrees by many of the medical experts, but particularly by Dr. Ronald Livingstone (Plaintiffs) and Dr. Nestor D. Demianczuk (Defence), who are both obstetricians and gynaecologists. The majority of experts who testified concluded A. had experienced IUGR while in utero , as did her treating physicians Dr.

Beaudry and Dr. Andrew. Dr. Demianczuk is the exception. He remained unconvinced that A.’s fetal growth and development was atypical. Notably, Defence neonatology expert Dr. William T. Bingham did not share Dr. Demianczuk’s opinion. A. Intrauterine Grown Restriction [ 62 ] In general the medical experts provided consistent explanations of the nature and mechanism of IUGR. IUGR is a global term used in obstetrics to describe a collection of conditions that result in atypically reduced fetal growth.

IUGR is an indication and consequence of stress, and in that sense is distinct from a fetus that is healthy but small as a consequence of its genetic characteristics. A simple way to describe IUGR is that a fetus affected by this conduction becomes malnourished during pregnancy. [ 63 ] Typically, the first effect of IUGR is simply reduced weight, followed by an atypically short body. More advanced IUGR results in an asymmetric newborn with a disproportionately large head.

This is a consequence of the fetus prioritizing aspects of its development; the body’s growth is secondary to brain and heart development and function. Dr. Demianczuk and Dr. Mah both described how in extreme instances an IUGR child takes on a ‘starved’ appearance with loose skin and a hollow appearance. [ 64 ] IUGR may result from a variety of causes, including placental insufficiency: inadequate nutrition or/and oxygen supply to the fetus via the placenta and umbilical cord.

Various maternal conditions, including diabetes, infections, malnutrition, Crohn’s disease, colitis, lupus, high blood pressure, kidney dysfunction, and cardiac disorders, can lead to IUGR. The timing of the IUGR insult during a pregnancy also affects the result. [ 65 ] Here, the experts agreed that IUGR, if present, was a consequence of placental insufficiency. A developing human fetus obtains nutrition and oxygen and eliminates wastes via the placenta, an organ that serves as an interface for the maternal and fetal blood to exchange materials.

Wastes including CO 2 are transported from the fetus to the placenta via fetal blood in the umbilical cord artery. In the placenta that fetal blood picks up nutrients including glucose and oxygen. The oxygen and nutrient-enriched blood returns to the fetus via the placental vein.

[ 66 ] A fetus experiencing placental insufficiency is one which, for some reason, fails to obtain adequate material exchange with its mother. Placental insufficiency is an ongoing condition which leaves a fetus in an increasingly stressed state as its growth and health cannot be sustained by an increasingly overtaxed placenta/umbilical cord resource delivery apparatus. At some point the placenta will no longer be able to provide all the nutrients and oxygen required by a fetus.

A fetus which experiences placental insufficiency will then grow slower than a healthy fetus, and as a result the fetus will increasingly ‘lag behind’ the typical size of a fetus of that gestational age. Dr. Demianczuk stressed it is the “trend which is very important”. An unusually small fetus is a cause for investigation. [ 67 ] Further, an IUGR fetus is unusually vulnerable to stress. For example, an IUGR fetus may exist in a low oxygen condition that leads to a low oxygen reserve.

A full interruption in oxygen supply to an IUGR fetus will probably have more serious consequences than to a non-IUGR fetus, and possibly disastrous results. Labour contractions impede the supply of oxygen and nutrients, which is why a caesarean

section is often preferred over labour and vaginal delivery for an IUGR fetus. Dr. Daneman testified that an IUGR fetus is also susceptible to hypoglycemia immediately following delivery, as the IUGR fetus is smaller and has not been able to build up stores of fat to help it withstand the stress of the birthing process. [ 68 ] The experts agreed an IUGR fetus requires closer monitoring prior to and during birth. Early delivery of an IUGR fetus, either via caesarean

section or induced labour, is often appropriate as the techniques available in a hospital to provide nutrition and oxygen are often superior to the mother’s capacity to support a fetus in utero . IUGR does not always lead to the kinds of injuries observed in A., as an IUGR child can be born healthy. That outcome is favoured by caesarian

section as that kind of delivery involved reduced stress and potential injury to an IUGR child. B. Was A. an IUGR Fetus? [ 69 ] Most of the relevant experts concluded A. had experienced IUGR during her fetal development. Dr. Demianczuk was the exception. His conclusion was that without observations from early June he could not extrapolate back from A.’s state at birth and evaluate her earlier condition.

He further argued that the natural variability in fetal growth rates made reliable estimates of A.’s state in early June, and specifically on June 5, impossible. [ 70 ] As a whole the experts did not see a basis to conclude the estimated date of conception was inaccurate. There was general agreement that Ms. T.-B. did not show signs of gestational diabetes or other maternal IUGR risk factors. While the experts agreed that estimates of fetal size by symphysis fundal height measurement have some intrinsic inaccuracy and may be inconsistent between medical professionals, there still was no question that Ms.

T.-B.’s fetus fell to the smaller end of the spectrum on May 22. [ 71 ] The dispute as to whether A. had or had not experienced IUGR to some degree devolved to a technical question of what standard fetal and newborn size characteristics technically qualify as IUGR. For example, different statistical frequency distribution charts were advanced as appropriate by different experts. The chart used by Dr. Livingston, for example, placed A. at between the 3 rd and 5 th percentile in newborn size for a single female ‘singleton’ pregnancy. Dr.

Demianczuk noted the post-birth weight and head circumference, but also testified that different populations and statistical profiles would classify a specific newborn in different ways. Similarly, Dr. Demianczuk was reluctant to accept the criteria indicated by the Alberta Perinatal Health Program in its publication “Intrauterine Growth Restriction Diagnosis and Management”. Dr. Bingham observed that the relevance of a given chart of this kind was contextual and a point of professional debate: ... this is – it’s a bit like trying to nail jell-o to the wall in trying to find the perfect growth chart.

It is really in a state of flux. [ 72 ] I view this debate as unnecessarily technical. A. was very small when born, and on May 22 had been measured as atypically small. She was born unusually thin and light. This was admitted by Defence expert Dr. Demianczuk who stated: ... this child is not a large child. It’s not a fat chubby kid. I think we all agree on that. There’s no issues there.

[ 73 ] If A. was not clinically IUGR, then she was very close to that category. No expert said that an IUGR diagnosis is some kind of strict threshold, that any fetus or newborn who is ever so slightly outside that category was certain to have no low-weight and size specific risks. Dr. Livingston, in fact, stressed the opposite was true. Dr.

Demianczuk acknowledged that the literature criteria for IUGR are “an arbitrary cut off”, institution-specific, inconsistent, and furthermore will capture small but healthy children. [ 74 ] I believe this question can be resolved better by examining whether A. had experienced the effects of IUGR, rather than by what the experts acknowledge are arbitrary statistical distinctions. The relevant experts were unanimous that one effect of IUGR is that the fetus receives inadequate nourishment from the mother.

This not only slows the growth of the fetus, but also inhibits an IUGR fetus from developing a normal ‘energy reserve’ of glycogen, a kind of glucose polymer starch. Put another away, if A. had experienced IUGR, then it would be anticipated that she would exhibit reduced glycogen reserves on birth. [ 75 ] Here, the Plaintiffs’ expert Dr. Denis Daneman is particularly helpful. As a pediatric endocrinologist he had the expertise to comment on the implications of observed post-delivery blood glucose levels.

Glucose is the standard ‘energy source’ compound used by the human body, and combined with oxygen is metabolized into CO 2 , a reaction that provides a great deal of biological energy. Glucose is the energy source molecule first consumed by the body. It is the only energy source used by brain tissues. When a body’s supply of free glucose is exhausted, glycogen is disassembled into glucose which is then used as an energy source. [ 76 ] Dr.

Daneman explained that in the hours after A.’s birth medical staff observed that A. had abnormally low blood glucose levels, a state that was ultimately addressed by an oral and intravenous supply of sugars. Dr. Daneman also explained that the blood sugar level in a fetus is typically close to that of its mother, so that before birth A. ought to have had a relatively normal blood sugar level. [ 77 ] He noted that there was no indication of any metabolic anomaly in Ms.

T.-B. or A. which may have affected the acquisition or metabolism of glucose, or formation of glycogen. [ 78 ] Combined, those factors indicated to Dr. Daneman that A. was born with unusually low glycogen reserves. Birth ended the maternal source for blood sugars. Normally, glycogen reserves would then be disassembled as the newborn’s blood glucose was consumed. However, that did not happen in A.’s case, and instead her blood glucose concentration plummeted.

That leads to the inference that A. was born with only very limited glycogen reserves. [ 79 ] The absence of glycogen reserves indicates A. did not have the opportunity to build nutrient resources, and absent any other explanations then logically that was a consequence of IUGR and its effects. I therefore conclude that prior to birth A. experienced a significant period of restricted growth and development as a consequence of IUGR.

Even if her birth and fetal size do not meet the criteria used by certain institutions for an IUGR infant, she nevertheless was, effectively, within that category, possessed the vulnerabilities typical of an IUGR infant, and warranted monitoring and treatment of a suspected IUGR fetus. As previously noted, A. was atypically small on May 22. C. Conclusion - A. was an IUGR Fetus [ 80 ] I conclude, on a balance of probabilities, that the effects of IUGR had begun by May 22. Reduced growth and development continued until A. was born on June 12 as a consequence of the ongoing IUGR condition. III.

Duty of Care [ 81 ] Dr. Mah acknowledges that she owed the Plaintiffs a duty of care. IV. Standard of Care

[82] The next question for me is to determine whether Dr. Mah breached the applicable standard of care. The Plaintiffs argue thatstandard was not met on three separate dates: May 22, June 5, and June 12, 2001. The alleged negligent conduct differs on each occasion.Specifically, the Plaintiffs argue that Dr. Mah erred: May 22: 1. when she did not take appropriate steps to investigate the small size of the fetus; 2. in the manner fetal movement was discussed with Ms. T.-B. and evaluated; 3. by instructing Ms. T.-B. to return for the next appointment on the wrong date; June 5: 4. by not contacting Ms.

T.-B. after she had missed the scheduled June 5 appointment; June 12: 5. by choosing at 3:25 p.m. to not recommend delivery by caesarean

section and instead proceeding to induce labour using oxytocin; 6. when she failed to explain to Ms. T.-B. the alternative medical responses to a fetus with a non-responsive fetal heart monitor strip,and the associated risks and benefits of those alternatives. [83] The last negligence alleged is a question of informed consent: whether Ms. T.-B. was provided with an adequateunderstanding of the treatment options in light of Ms. T.-B.’s (alleged) preference for a vaginal birth, rather than a caesarean section.

Aswill become apparent, my findings of fact means that the basis for this alleged negligence did not occur, and so this allegation will not beaddressed further. A. Law [84] The parties generally agree on the relevant law that is applied to test whether a medical professional has met his or herstandard of care when treating a patient. A doctor should have and apply the level of care, skill and knowledge of the averagepractitioner in his or her specialty: Ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 at paras. 32-33, 38, 127 D.L.R.(4th) 577; St-Jean v.

Mercier, 2002 SCC 15 at para. 52, [2002] 1 S.C.R. 491. [85] A medical professional’s conduct is tested on the basis of the knowledge and practices of a medical practitioner at the time ofthe alleged negligence: Ter Neuzen, supra, at para. 34. [86] A trial judge evaluates the standard of care of a professional with the assistance of expert evidence on the standards andpractices of that discipline: Stoddard v. Montague, 2006 ABCA 109 at para. 20, 412 A.R. 88. Dr. Livingston testified for the Plaintiffsas to the appropriate standard of care for Dr. Mah, while Dr. Demianczuk responded as Dr.

Mah’s expert witness on this issue. All threeare gynecologists and obstetricians. B. Evidence

[87] Certain aspects of the evidence that relates to whether Dr. Mah breached her standard of care is relatively uncontroversial. Ihave previously outlined the general sequence of events leading to A.’s birth. What follows is more detailed investigation of the threecrucial dates. [88] Dr. Mah did not remember most of the relevant events, and instead interpreted the medical records that were prepared at therelevant times. The role of these records as evidence is well established.

Certain documentary evidence, including physicians’ andnurses’ notes, can be received in evidence as prima facie proof of their contents: Ares v. Venner, (SCC), [1970] S.C.R.608 at 626, 14 D.L.R. (3d) 4; R. v. O’Neil, 2012 ABCA 162 at para. 44. Similarly, the absence of information in a medical chart entry isa basis to infer that nothing was charted because nothing was done: Joseph Brant Memorial Hospital v. Koziol; Kolesar Estate v.Joseph Brant Memorial Hospital, (SCC), [1978] 1 S.C.R. 491, 77 D.L.R. (3d) 161. [89] Justice Nation in Waap v. Alberta, 2008 ABQB 544 at para. 11, 95 Alta.

L.R. (4th) 167, provides a helpful

summary of therole of medical practitioners in the

interpretation of records they have prepared: Doctors are not required to keep their records in a particular style or form. The purpose of the notes is to record for the doctor the salientdetails, as a memory aid, to allow quality of care over time. Dr.

Langevin's records were certainly cryptic, and had his operative reportactually been dictated and typed, it may have done much to help the physicians and experts who were asked to review this case.However, he is entitled to testify to tell the court what the notes mean to him, to testify about his usual practice, and if he has anindependent memory of events, to give that evidence. ... 1. Facts Not In Dispute [90] Many aspects of the three crucial dates are not in dispute. Much of this information flows from the documentary record of Ms.T.-B.’s prenatal examination and the delivery process.

Neither party argued that the information in the documentary record is in somesense false or incorrect. Whether these notes are complete is a separate question. a. May 22, 2001 [91] Ms. T.-B. had her first and only prenatal examination with Dr. Mah on May 22, 2001. Ms. T.-B. testified as to what sherecalled of this examination. Dr. Mah indicated she had no memory of this appointment, and could only rely on her records. No otherperson was present. [92] Certain aspects of this examination are not controversial. Ms.

T.-B. says the examination included measurements of herweight, blood pressure, and that she provided a urine sample. She and her fetus were physically examined by Dr. Mah, who did notindicate any unusual or worrisome responses. [93] Dr. Mah’s records confirm those tests were a part of her usual investigations of a newly referred patient. The fetal age hadbeen established as being 34 weeks. A crucial measurement taken and recorded by Dr.

Mah was the symphysis fundal height, an indirectmeasurement of the size of the fetus by recording the distance in centimetres between the top of the symphysis of the pubic bone, to thehighest midline point of the uterus. Dr. Mah recorded a fundal height of 31 cm. [94] Ms. T.-B. testified that she was instructed to return for a follow-up examination. Dr. Mah confirmed that would be herstandard practice, and that in a case such as this that appointment would be in two weeks: June 5, 2001. Dr.

Mah testified she would notpersonally set that date, but instead would instruct a patient to arrange the follow-up examination date with the assistance of Dr. Mah’sreceptionist. [95] There is no suggestion Dr. Mah was present when Ms. T.-B. arranged for the follow-up examination with Dr. Mah’sreceptionist. Similarly, the parties do not dispute that Dr. Mah’s receptionist provided Ms. T.-B. with a urine specimen cup, with a datewritten on it. Ms. T.-B. asked when the next appointment was, and the receptionist pointed to the date on the cup. The cup, which was

entered as an exhibit at trial, had “June 15” written on it. [ 96 ] There is no dispute that the “June 15” date was an error made by Dr. Mah’s receptionist. The correct date was June 5, 2001, and that date was recorded in Ms. T.-B.’s chart. b. June 5, 2001 [ 97 ] Unsurprisingly, Ms. T.-B. missed her two week follow-up appointment, scheduled for 10:15 a.m. This fact was noted on Ms. T.-B.’s chart. Neither Dr. Mah nor her office attempted to contact or otherwise investigate Ms. T.-B.’s failure to attend her appointment. c. June 12, 2001 [ 98 ] A. was delivered on June 12, 2001.

Much of the narrative for that date is not in dispute. In the morning of June 12, 2001, Ms. T.-B. observed that she was experiencing some minor vaginal bleeding. She understood from prenatal care literature that she had read that this was a problematic sign. She contacted Dr. Mah’s office with that information, and sought guidance. [ 99 ] When Dr. Mah returned Ms. T.-B.’s telephone call Dr. Mah instructed Ms. T.-B. to report immediately to the Misericordia Hospital emergency ward. Mr. B. and Ms. T.-B. discussed the situation and decided he would first go to work and then meet her at the hospital. [ 100 ] Ms.

T.-B. arrived at the Misericordia Hospital and was admitted at 1:31 p.m. Dr. Mah was in surgery at the time Ms. T.-B. arrived. Ms. T.-B. was fitted with a fetal heart monitor at about 2:00 p.m. At 2:50 p.m. a hardcopy of the fetal heart monitor record was taken to Dr. Mah. Dr. Mah’s received that monitor record at 2:20 p.m. and at 2:22 p.m. instructed that Ms. T.-B. receive an intravenous saline drip and not eat or drink anything. [ 101 ] Dr. Mah has no specific recollection of that, and based her testimony on her usual practices and documentary evidence. [ 102 ] Ms.

T.-B. had already been told that she was being prepared for an emergency caesarian section, and these steps are consistent with that objective. [ 103 ] Mr. B. and Ms. T.-B.’s mother arrived and joined Ms. T.-B. [ 104 ] Dr. Mah first examined Ms. T.-B. and the fetus at 3:25 p.m., and concluded the fetus was in distress. Ms. T.-B.’s amniotic membranes were ruptured at this point. [ 105 ] Between 4:00 and 5:15 p.m. Ms. T.-B. received syntocinon via intravenous injection. Syntocinon is a synthetic form of the human hormone oxytocin.

Medical witnesses used both of these terms, but for clarity I have consistently referred to this drug as “syntocinon”. That drug induces uterine contractions, however during that period this stimulation did not result in a delivery. The syntocinon was discontinued at 5:10 p.m. [ 106 ] Dr. Mah returned at 5:15 p.m. Ms. T.-B. signed a form that stated she consented to a caesarian section. She entered the operating room at 6:06 p.m. A. was delivered at approximately 6:30 p.m. [ 107 ] That ended Dr. Mah’s direct involvement with both A. and her parents.

I will discuss the post-delivery events at a subsequent point in this decision when I evaluate whether Dr. Mah’s actions caused A.’s injuries.

2. Witness Testimony [ 108 ] Evidence from a number of the Plaintiffs’ witnesses is relevant to establish what occurred on the three critical dates. In particular, Ms. T.-B., her husband, and her mother were present in the Misericordia hospital on June 12, 2001. Dr. Mah testified as to the events of all three dates. The Defence did not call any other witnesses, though by all accounts there were a number of obstetric nurses present with Dr. Mah and the Plaintiffs at various points on the date A. was born. a. Ms. T.-B. i. May 22, 2001 [ 109 ] Ms.

T.-B. testified that she has very clear memories of the May 22, 2001 appointment. She recalls her interaction was brief, only five minutes. Ms. T.-B. said that at this point she was apprehensive about her pregnancy, as it seemed to her that the size of her fetus was atypically small. [ 110 ] Ms. T.-B. testified that on May 22 she also expressed concern that fetal movement seemed to have decreased. Dr. Mah responded that the fetal measurements were fine, and no basis for concern. During cross-examination Defence counsel noted that Ms.

T.- B. had previously indicated the conversation on decreased fetal movement was with Dr. Cho, and not Dr. Mah. Ms. T.-B.’s explanation at trial was that her prior evidence was inaccurate as at that time she was confused. She also explained that it had seemed to her that fetal movement had continued throughout her pregnancy, but had decreased in the last several months. [ 111 ] Ms. T.-B. reports that she asked for an additional ultrasound examination at the May 22 appointment. Dr.

Mah replied that she would not order an ultrasound on request, and pointed to a sign on the back of the examination room door that also indicated that Dr. Mah would not order ultrasounds based on patient requests. [ 112 ] Dr. Mah concluded that the pregnancy appeared fine, and then instructed Ms. T.-B. to speak to the office receptionist and book a follow-up appointment. The interval prior to that next appointment was not discussed. [ 113 ] Ms. T.-B. perceived Dr. Mah as being hurried and rushed, “her manner was very brisk.” Her estimate is that the entire examination by Dr. Mah took five minutes. ii.

June 5, 2001 [ 114 ] Ms. T.-B. did not attend Dr. Mah’s office for the scheduled June 5, 2001 follow-up examination, as she did not know that appointment had been scheduled for that day. iii. June 12, 2001 [ 115 ] Ms. T.-B. has an independent memory of events that occurred on June 12, 2001. That day, a Tuesday, Ms. T.-B. observed she had a small amount of vaginal bleeding. The blood was bright red. She and Mr. B. recognized this was a problematic development. She contacted Dr. Mah’s office with this information. Shortly thereafter Dr. Mah telephoned Ms.

T.-B. and instructed that she report to the Misericordia hospital emergency ward. [ 116 ] Mr. B. went to work, while Ms. T.-B. went to the hospital. She testified that shortly after her arrival she was fitted with a fetal heart monitor. At that point she reported to the attending nurse that she had observed little fetal movement since Sunday night, but that

was inaccurately charted that there had been no fetal movement. [ 117 ] She said that within 15 minutes the fetal heart monitor’s alarm went off. A nurse took the printout from the monitor to Dr. Mah, who Ms. T.-B. understood was in an operating room. The attending nurses reported to her that the fetus was in distress, and to anticipate an emergency caesarian section. Ms. T.-B. telephoned her husband’s assistant and left a message to that effect. [ 118 ] Mr. B. and her mother, Ms. M.T., arrived. [ 119 ] Ms. T.-B. then testified that Dr.

Mah then arrived at her hospital room, conducted a vaginal exam, and ruptured Ms. T.-B.’s membranes. Mr. B. was not present for this event, as he left the room during the vaginal exam, an action that irritated his wife. Her mother remained. [ 120 ] Ms. T.-B.’s recollection is that Dr. Mah did not consult with her or her mother prior to rupturing the membranes. Instead, Dr. Mah announced she would take that step, but did not explain why. She said that Dr. Mah then stated she would attempt to induce vaginal delivery of the fetus. Dr. Mah left the room. [ 121 ] Ms.

T.-B. was cross-examined in detail on the events of this period. Ms. T.-B. was emphatic that Dr. Mah did not seek authorization prior to rupture of the amniotic membranes, however she was not surprised by that step. Similarly, she stated that there was never any consultation or discussion about the need for a caesarian

section or induction of vaginal delivery. Instead, Ms. T.-B. testified that Dr. Mah simply announced that she was going to attempt to induce delivery, and see how the fetus coped with that step. Ms. T.-B. was emphatic: Dr. Mah did not at this point invite consent to take a particular approach to deliver the fetus. [ 122 ] During this period Dr. Mah had a conversation with Ms. T., however Ms. T.-B. said she did not hear the substance of that discussion. [ 123 ] Mr. B. returned after Dr. Mah had left. The obstetric nurses explained to him that Dr.

Mah wanted to see how the fetus tolerated labour processes. [ 124 ] Ms. T.-B. watched the nurses administer the drugs to trigger induction, and observed the fetal heart rate monitor as that process continued. She believed the nurses did not approve of Dr. Mah’s choice to induce labour, and that they were worried about the fetal heart monitor results. One swore in Dutch. [ 125 ] A student intern arrived and requested permission to conduct a pelvic exam. Ms. T.-B. stated that Mr. B. became upset, and demanded to know if that examination was necessary.

The intern left without doing the exam. [ 126 ] The next event reported by Ms. T.-B. is that the nurses discontinued the drug flow. She understood the fetus was in distress. However, on cross-examination Ms. T.-B. acknowledged that she did not, in fact, know why the drug induction had been stopped. [ 127 ] It was now around 5:00 p.m. Dr. Mah returned, and told Ms. T.-B. that the fetus was not tolerating the induction process. An emergency caesarian

section was recommended. Dr. Mah explained that the earliest delivery was preferable, as the fetal heart had been affected by the induction process. [ 128 ] Ms. T.-B. agreed to an emergency caesarian section, which then followed. She testified that once A. was delivered, the baby immediately required resuscitation and additional care. b. M.T.

[ 129 ] Ms. M.T. is the mother of Ms. T.-B.. She testified that Ms. T.-B. had told her, after the May 22, 2001 appointment with Dr. Mah, that Ms. T.-B. was disappointed that Dr. Mah had not ordered an ultrasound examination of the fetus. Mother and daughter also discussed fetal movement, and that Ms. T.-B. would prefer to deliver her child in a hospital, rather than use a doula. Ms. T. also testified that her daughter would have preferred a caesarian

section delivery, if available, and that was consistent with her daughter’s personality. [ 130 ] Ms. T. was present at the Misericordia Hospital on the day A. was born. She received a telephone message that Ms. T.-B. had gone to the hospital. When she arrived Ms. T.-B. had been joined by her husband and Dr. Mah. This was at approximately 3:30 p.m. Dr. Mah indicated that the fetus was in distress, but that she would attempt to induce labour rather than a caesarian

section delivery. Ms. T. stated that she did not observe the rupture of Ms. T.-B.’s amniotic membranes. [ 131 ] After Dr. Mah left and induction was underway, Ms. T. returned home to talk to her husband. At about 5:00 p.m. she received another telephone call from her daughter, who told her that a caesarian

section was now planned. Ms. T. returned to the hospital, and was present prior to and after the delivery. The next morning Ms. T. discovered A. had some difficulties after birth. c. Mr. B. [ 132 ] Mr. B. was not present for the May 22, 2001 appointment with Dr. Mah. He testified that after that meeting Ms. T.-B. told him some of what had transpired: that Dr. Mah had minimized her concerns and was dismissive, and that a request for an ultrasound examination had been rejected. Ms. T.-B. told him of a sign about requests for ultrasound examinations on the back of the examination room door. [ 133 ] Mr.

B. also confirmed that he and his wife had consulted a doula for the birth but rejected that option: “[i]t seemed a little too alternative and a little flaky.” [ 134 ] His testimony in relation to the events of June 12, 2001 generally matches that of Ms. T.-B.. He recalled the plan that he would first go to work and then meet Ms. T.-B. at the Misericordia Hospital. He later received a telephone call advising him that Ms. T.-B. expected a delivery via caesarian section. In cross-examination it was pointed out to Mr. B. that his wife denies this conversation occurred. [ 135 ] Mr.

B. arrived at the hospital and joined his wife. He acknowledges at this point that he has clear memories but that their exact chronological order is less defined. He agrees he was absent when Dr. Mah first arrived, but did see Dr. Mah as she concluded an exchange with Ms. T. Dr. Mah then left. [ 136 ] He observed the syntocinon being administered, and that the fetal heart monitor alarm would trigger from time to time. The nurses seemed agitated. One nurse explained that Dr. Mah had wanted to see how the fetus would tolerate labour. A nurse swore in Dutch.

He understood some Dutch because he had spent time in Holland. The induction process was halted by a nurse, who said the fetus was distressed. [ 137 ] Dr. Mah returned shortly thereafter, and presented a document to them to consent to a caesarian section. She counseled Ms. T.- B. and Mr. B. on the risks of a caesarian section. Mr. B. and Ms. T.-B. examined the papers, which his wife then signed. He attended the delivery. A. was removed for care. d. R.T. [ 138 ] R.T. is Ms. T.-B. ’ s sister. She was not present at any of the key events, however she did offer evidence of what occurred during Ms.

T.-B. ’ s pregnancy. She confirmed that she and her sister had discussed delivery of the child with the assistance of a doula, but that Ms. T.-B. had rejected that alternative.

[ 139 ] R.T. testified that Ms. T.-B. was dissatisfied after the May 22, 2001 appointment with Dr. Mah. This apprehension related to fetal movement and her “intuition”. On cross-examination R.T. could not elaborate on what steps Ms. T.-B. had taken to evaluate that or the timing of her concerns. [ 140 ] R.T. said she received several telephone calls from Ms. T.-B. on June 12, 2001. She arrived at the Misericordia Hospital after the caesarian

section had occurred. At that point she learned that A. was experiencing difficulties. e. Cynthia Baerg [ 141 ] Cynthia Baerg is a friend of Ms. T.-B.. They discussed Ms. T.-B.’s pregnancy in 2001. At that point Ms. Baerg had had several children. One point of discussion was the apparent size and movement of the fetus. She said she had explained to Ms. T.-B. that in her experience fetal movement can be highly variable, and told her of ways to measure that kind of activity. [ 142 ] Ms. T.-B. called Ms. Baerg on June 12, 2001. One message indicated Ms. T.-B. anticipated a caesarian

section delivery. In a subsequent telephone call Ms. T.-B. announced there had been a change of plans, and that labour had been induced and the fetal response was being monitored. Ms. Baerg said she was told: ... they were starting to induce labour because the doctor felt she would like to have a trial of labour. Ms. Baerg was specific that “a trial of labour” was the manner in which Ms. T.-B. expressed the situation. [ 143 ] Ms. Baerg did not attend the Misericordia Hospital on that day. f. Dr. Mah [ 144 ] Dr.

Mah is an Edmonton area obstetrician and gynaecologist with an appointment at the Misericordia Hospital. At the time in question she had close to twenty years’ active clinical and surgical experience in those fields. She had participated in training residents in her area of specialty. In 2001, about half her time was dedicated to each specialty. i. May 22, 2001 [ 145 ] Dr. Mah has no memory of her May 22, 2001 appointment with and examination of Ms. T.-B.. Her testimony in relation to this appointment therefore is essentially Dr. Mah ’ s

interpretation of her notes, and commentary on her standard procedures. [ 146 ] Dr. Mah testified that those notes are a composite of information entered by the office receptionist, a supporting nurse, and herself. Dr. Mah did not identify any atypical aspect of the record of the May 22 visit. It appeared to be representative of her usual first examinations of a healthy pregnant woman. Dr. Mah reported that assessment to Dr. Cho by letter following that appointment. [ 147 ] These initial interviews usually took about 15 minutes, but that duration varied by need. Dr.

Mah described her usual physical examination and medical sampling. Here, there were no apparent issues or warning indicia. The fetal heart was normal. In Dr. Mah’s opinion the fetus was small, but still fell within a normal variation range. Dr. Mah was cross-examined on the possibility that Ms. T.-B.’s fetus was experiencing IUGR. She indicated and I accept that as an experienced obstetrician and gynecologist, Dr. Mah was familiar with that condition and its various causes.

[ 148 ] Dr. Mah explained that at this point in fetal development it was too early to observe the degree to which the fetus had ‘fallen behind’ a typical growth pattern. Dr. Mah noted that sometimes a fetus is healthy but unusually small, a factor that is more common with certain ethnic backgrounds. [ 149 ] Cross-examination of Dr. Mah focused on two specific issues. The first was whether Ms. T.-B. had reported a decrease in fetal movement. Dr.

Mah stressed that fetal movement, while a helpful indicator of certain phenomena, nevertheless is highly variable in form and frequency, and that fetal movement patterns evolve as a pregnancy develops. [ 150 ] Here, a notation “FM” was written, and nothing else. Dr. Mah explained that fetal movement was reported as normal, as an ‘X’ would have been written if Dr. Mah had received an atypical response to her inquiries into fetal movement, or if Dr. Mah suspected abnormal fetal movement patterns and frequency. Dr. Mah was explicit that if Ms.

T.-B. had reported reduced fetal movement, then that fact would have been noted and investigated: Q. And what would you be listening for in a patient who exhibits concerns to you about fetal movement? What would catch your attention? A. If there was a decrease in fetal movement. If she said that, then obviously, further investigations would be needed. Dr. Mah indicated that if a pregnant patient reported no fetal movement, then Dr. Mah would immediately order an ultrasound examination. [ 151 ] The second focus in relation to the May 22, 2001 appointment was Ms. T.-B. ’ s claim that she had requested that Dr.

Mah order an ultrasound, a request that Dr. Mah denied while pointing at an office sign that notified no ultrasound would be ordered without an apparent medical need. [ 152 ] Dr. Mah confirmed that her policy was to refuse to refer patients for an additional ultrasound where a pregnancy appeared routine, as those referrals would compromise her reputation with area radiologists. Instead, Dr. Mah suggested a concerned patient should book their own ultrasound appointments. [ 153 ] While Dr. Mah agreed that she likely would have refused to order an ultrasound examination for Ms.

T.-B., she denied that her office had signs in the examination ro

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