Tim Wood, Litigation Representative of K.S., an Infant Plaintiff - v. -, 2016 ABQB 483

Court of Queen ’ s Bench of Alberta Citation: KS v Willox, 2016 ABQB 483 Date: 20160829 Docket: 0403 07714 Registry: Edmonton Between: Tim Wood, Litigation Representative of K.S., an Infant Plaintiff - and - David Willox and Brian Muir Defendants _____________________________________________ Reasons for Judgment of the Honourable Madam Justice M.T. Moreau ____________________________________________________ I. Introduction . 4 II. Background Facts . 4

A. Education and Experience of Dr. Willox and Dr. Muir 4 B. J.S.’s Pregnancy . 5 C. Delivery of K.S. 10 D. K.S.’s Health in Infancy . 11 E. K.S.’s health in his childhood and teenage years . 13 III. Preliminary Issues - Exhibits . 15 A. Documents in Agreed Exhibits (Exhibits 1 and 2) 15 B. Evidentiary Value of Agreed Exhibits . 15 C. Evidentiary value of peer-reviewed scientific/medical literature . 16 IV. Negligence in Failing to Perform a Cerclage . 18 A. Duty of care . 19 B. Standard of care . 20 1. Law .. 20 2. Evidence . 23 a. Dr. Jerome Dansereau . 23 b. Dr. Radha Chari 30 c. Dr. Brian Muir 36 d. Dr.

David Willox . 39 e. Dr. Robert Cameron . 40 f. Dr. William Young . 43 3. Positions of the Parties . 45 a. Plaintiff’s Position . 45 b. Defendants’ Position . 48 4. Findings . 53 C. Injury or Loss . 62 D. Causation . 62 1. Law .. 62 2. Causation Issues . 65 a. Was the injury foreseeable? . 65 b. Was K.S.’s pre-term birth caused by an incompetent cervix? . 65 i. Evidence . 66 ii. Positions of the Parties . 71 iii. Findings . 73 c. Would reasonable treatment have led to cerclage as an option? . 75 d. Would J.S. have chosen cerclage? . 77 e. Would emergency cerclage have prevented the ChorioA? . 80 f.

Would emergency cerclage have extended J.S.’s pregnancy? . 81 i. Evidence . 81

ii. Positions of the Parties . 86 iii. Findings . 89 g. What caused K.S.’s brain injury? . 89 i. Evidence . 89 ii. Positions of the Parties . 96 iii. Findings . 96 h. What caused the ASD? . 97 i. If cerclage had extended J.S.’s pregnancy, would the injuries suffered by K.S. have been averted or less serious? . 97 V. Negligence in Failing to Obtain Informed Consent 99 A. Law .. 99 B. Evidence . 103 1. J.S. 103 2. Dr. David Willox . 103 3. Dr. Brian Muir 104 4. Dr. Jerome Dansereau . 104 5. Dr. David Cameron . 105 6. Dr. Radha Chari 105 7. Dr. William Young . 105 C. Positions of the Parties . 106 1.

Plaintiff’s Position . 106 2. Defendants’ Position . 107 D. Findings . 109 VI. Damages . 110 A. Overview of K.S.’s medical and cognitive condition . 110 B. K.S.’s learning challenges and needs . 114 C. Breakdown of K.S.’s school day . 116 D. Is K.S.’s ASD condition causally connected to his premature birth? . 118 E. Non-pecuniary Damages . 120 F. Pecuniary damages . 123 1. Future loss of earning capacity . 123 2. Future Loss of Shared Family Income . 126 3. Past costs of care . 129 4. Costs of future care . 133 a. Services and equipment 133 b. Future residential arrangements for K.S. 138 c.

Deductibility of Government Programs . 145 G. Structured Settlement 151 H. Inflation and Interest 152

VII. Conclusion . 152 VIII. Costs . 152 I. Introduction [ 1 ] On October 24, 2000, J.S. gave birth to a severely premature infant boy, K.S. , weighing just under 1½ pounds. Within days of his birth, K.S. developed a neurological condition resulting in the loss of his white brain matter, blindness in one eye and other injuries, some of them having since resolved. Now 15 years of age, K.S. has severe cognitive deficits and very limited vision in one eye, is hypersensitive to external stimuli, and was recently diagnosed with severe Autistic Spectrum Disorder (ASD). [ 2 ] The Defendant, Dr.

David Willox, is a Peace River general practitioner who, at all material times, was in charge of the care of J.S. during her pregnancy. The Defendant, Dr. Brian Muir, is a Grande Prairie obstetrician and gynecologist with whom Dr.

Willox consulted by telephone after a routine transabdominal ultrasound performed on J.S. at 21 weeks gestation raised concerns about the possibility of pre-term delivery. [ 3 ] At issue in this lawsuit are: - whether one or both of the Defendant physicians failed to meet the standard of care applicable to each of them in the care and treatment of J.S.; - whether K.S. ’s injuries and losses were causally related to the management plan for the care of J.S. recommended by Dr.

Muir, or whether they were caused by an infection; - whether the Defendant physicians should have informed J.S. of the benefits and risks of cervical cerclage, a treatment option for an incompetent cervix; and - the nature and amount of non-pecuniary and pecuniary damages to which K.S. is entitled if liability of one or both of the Defendant physicians is established. II. Background Facts A. Education and Experience of Dr. Willox and Dr. Muir [ 4 ] Dr. David Willox graduated from medical school in 1980.

He was awarded the CONN Memorial Gold Medal for best student in obstetrics and gynecology in his graduating class. He performed many deliveries during his one-year family practice residency in Calgary, spent a further year of practice in New Zealand, and then obtained a certificate in general practice anesthesia at the Royal Alexandra Hospital (RAH) in Edmonton following a six-month training program. He moved to Peace River in 1984, where he had a general practice until 2004. [ 5 ] Dr.

Willox attended courses in obstetrics offered through the Peace River Hospital, reviewed medical literature of interest to him, which he accessed through the hospital library, including guidelines produced by the Society of Obstetricians and Gynecologists of Canada (SOGC), which he reviewed regularly along with the Canadian Family Practice Journal. There was no obstetrician and gynecologist in Peace River during the years of his practice. He referred complicated deliveries to obstetricians in Grande Prairie and, if a neonatologist was required, he sent the patient to Edmonton. [ 6 ] Dr.

Willox suffered a brain tumor in 2004 and has been retired since that time. He has undergone four surgeries, continues to experience seizures, is on medication and walks with a cane. He testified that his condition has had some effect on his memory. [ 7 ] Dr. Brian Muir completed medical school in 1998, followed by a rotating internship in the U.S. and one year in family practice. He completed his fellowship in obstetrics and gynecology and has been a member of the Royal College of Physicians and Surgeons since 1994. He is a member of the SOGC and of the American College of Obstetricians and Gynecologists (ACOG).

He was one of two practising obstetricians at the Grande Prairie Queen Elizabeth II Hospital in October 2000 and was its Chief of Surgery from 1999 to 2000. [ 8 ] As part of his continuing education, Dr. Muir subscribed to the SOGC journal since becoming a physician, and to the ACOG journal since completing his residency. He stated that the back portions of these journals contain clinical practice guidelines or bulletins that guide the profession and are very important for keeping practitioners current. He tends to glance at the front portion, which contains articles or studies.

After a few years of practice, he also subscribed to the New England Journal of Medicine to help keep him current on

all aspects of medicine. [ 9 ] Dr. Muir was a member of an Alberta medical association committee that developed clinical practice guidelines in 1996-98 for the use of ultrasound technology in pregnancy. He remarked that this period was one of the few times he would actually have considered himself to be up to date on the literature in this area. Between 1994 and 2000, his practice was about one-half obstetrics, mostly high risk, and one-half gynecology. Patients were referred to him by family physicians within the catchment area of Northwest Alberta, which also included Peace River.

He also consults with and refers patients to Edmonton. B. J.S.’s Pregnancy [ 10 ] J.S. became a patient of Dr. Willox in 1998. This was J.S.’s first pregnancy. J.S. saw Dr. Martin Eckhart, another general practitioner working at the same clinic, on June 28, 2000 as she was experiencing some spotting. Dr. Eckhart performed a pelvic examination on that date and found the cervix to be closed. Dr. Eckhart discussed with J.S. the chance of miscarriage early in pregnancy. [ 11 ] Dr. Eckhart testified that his differential diagnosis was first trimester bleed, ectopic pregnancy, miscarriage or infection.

Her last period was May 7, 2000 according to his chart. J.S. had noted some vaginal discharge on June 6, 2000. This would have been exactly one month after her previous period. Menstrual bleeds, according to Dr. Eckhart, sometimes occur at the first missed period. He ruled out ectopic pregnancy, as J.S. was not experiencing any pain, her uterus was slightly enlarged and her fallopian tubes were not enlarged. As infection can be a source of bleeding, he took cultures and the lab test results were normal.

His treatment plan included observation and return for an ultrasound if she was experiencing pain. [ 12 ] J.S. saw Dr. Willox for the first time in her pregnancy on July 4, 2000. He made the following notation in the Family History

section of J.S.’s prenatal record under “Other (include obstetrical)”: “mother incompetent cx [cervix] Shirodkar suture”. J.S. recalled telling Dr. Willox that her mother had an incompetent cervix, had previously miscarried once or twice, and had to be stitched for her pregnancies with J.S. and her two siblings. [ 13 ] According to J.S., Dr. Willox told her that incompetent cervix is not familial, which she understood to mean that it was not an inherited condition. According to read-ins from Dr.

Willox’s Examination for Discovery of April 18, 2006, he would have made the notation regarding incompetent cervix as an area of concern. J.S. was anxious about it and this was the only reason for having noted it, not to forewarn him of any predictive value. At trial, he indicated some recollection of J.S.’s July 4, 2000 visit, in particular that he explained to her that incompetent cervix was not familial. It was his understanding in 2000 that there was no genetic tendency in that regard and he acknowledged that he told her so unequivocally.

He did not conduct a literature search to confirm his belief that there was no genetic predisposition for incompetent cervix. He acknowledged that he and J.S. might have discussed her mother’s history more than once, but he could not recall any further discussion along those lines. [ 14 ] J.S. attended at the Peace River Health Centre Emergency Department on July 17, 2000, as she had passed a clot. In an October 9, 2000 entry in the diary in which J.S. recorded events from prior to the birth of K.S. , she described what had occurred on July 17, 2000 as a “gush”.

The results of an ultrasound performed on July 17, 2000 were normal, and an emergency room chart entry recorded that her cervix was closed. The ultrasound report indicated “viable early intrauterine pregnancy”. Dr.

Willox confirmed he would have seen the ultrasound report and stated that it would not have raised concerns, as a first trimester bleed was not at all uncommon in routine pregnancies. [ 15 ] A follow-up ultrasound performed on July 24, 2000 raised no concerns and confirmed that the placenta was “early forming”. [ 16 ] J.S. had no recollection of her August 14 and September 12, 2000 regular monthly visits with Dr. Willox and nothing unusual was reported on the pre-natal record of these two visits. [ 17 ] At J.S.’s September 12, 2000 visit, Dr. Willox arranged for a routine ultrasound on October 2, 2000.

The report of the October 2, 2000 ultrasound stated: There is a pregnant uterus present with a single fetus, with the head low, but no (sic) Well down. Placenta is anterior and does not encroach the os area. However, the cervix is open with fluid, which seems to bulge into it. Fetal heartbeat has been easily recorded. There is satisfactory amount of amniotic fluid present. Blood pressure, head circumference, the BPD measurement is 47 mm, head circumference is 194 mm, femur length 37 mm, abdominal circumference is 172 mm.

These measurements correspond to 20-21.5-22-22 week gestation, with a composite age of 21 weeks. Fetal kidneys and umbilical cord not seen well, otherwise fetal anatomy appears unremarkable. No maternal hydronephrosis. COMMENT: Significant finding here is that the internal os is open with fluid bulging towards the os. Single fetus as described. [ 18 ] Dr. Willox testified that he assumed Dr. Nath, who performed the October 2, 2000 ultrasound, communicated the ultrasound results to him that day, as he arranged with J.S. by phone to see her the next morning.

The internal os (located at the top of the cervical canal) being open was a potential problem and he arranged to examine J.S. in order to determine if the external os (located at the bottom of the cervical canal) was open. The ultrasound finding indicated that J.S. was at risk of spontaneous abortion. He could not recall what he said to J.S. in their phone call arranging for her October 3, 2000 appointment. J.S. recalled Dr. Willox telling her that she may have to be put on bedrest. [ 19 ] According to J.S., Dr. Willox told her at the October 3, 2000 appointment that the cervix was closed from the bottom.

She could not remember if it was then, but at some point she asked Dr. Willox about a cervical cerclage. She stated that he told her they did not need to worry about it; they were going to wait and see, and another ultrasound would be scheduled. She recalled Dr. Willox also telling her that other people who had received a stitch had gone over-term by 2 weeks. She could not recall if he mentioned anything about bedrest. [ 20 ] According to J.S., Dr. Willox did not discuss referring her to an obstetrician or perinatologist. She could not recall whether Dr.

Willox discussed with her the risks associated with an incompetent cervix. She stated that there was no “real discussion” about the risks

and benefits of cerclage; she would have remembered such a discussion. She did not recall receiving advice from Dr. Willox against performing cerclage, just that it was not necessary. She recalled him leaving the room at one point on her October 3, 2000 office visit, then returning and indicating he had consulted with someone, although she was not aware whether it was an obstetrician. [ 21 ] J.S. could not recall at which appointment Dr. Willox told her that she was to go to hospital if she had any problems with cramping or bleeding.

However, she acknowledged she knew this as she had already reported to emergency on July 17, 2000. [ 22 ] Dr. Willox testified that J.S. was particularly anxious at her October 3, 2000 office visit. He performed a manual pelvic exam with a speculum. He recorded the cervix being a fingertip long, meaning about 1 cm, and there were no bulging fluid or membranes and no effacement. His reference to “fingertip” in his digital examination of the external os was a reference not to a measure of dilatation, but to the length of the cervix. [ 23 ] Dr.

Willox testified that J.S. brought up the subject of a suture at her October 3, 2000 visit. He recalled placing a telephone call to Dr. Muir following his examination of J.S. He could not recall their entire conversation, however, he relayed to Dr. Muir the October 2, 2000 ultrasound report and the results of his clinical examination. He told Dr. Muir that there was no bleeding. He asked Dr. Muir whether J.S. was a candidate for a Shirodkar suture as she had been particularly anxious about this. Dr. Muir responded “absolutely not”, which confirmed what Dr. Willox had learned from his medical training. Dr.

Muir advised him to implement an expectant management care plan, which consisted of modified bedrest, abstention from sexual activity, weekly check-ups and more ultrasounds. Dr. Muir did not mention a referral to an obstetrician or perinatologist nor that Dr. Willox should obtain a TVU (in depth ultrasound permitting closer observation of the cervix). Dr. Willox testified that he did not think a TVU was available in 2000 in Peace River. He was unsure whether it was available in Grande Prairie but was aware at the time that it was available in Edmonton.

He affirmed, however, at Examination for Discovery, that a TVU could be arranged in Grande Prairie or Edmonton. To his recollection, he did not advise J.S. that she could have a TVU. Dr. Muir testified that Edmonton was performing TVU’s but did not confirm in his evidence that they were available at the time in Grande Prairie. It has not been established that a TVU was available in Grande Prairie in October 2000, although this form of ultrasound was available in Edmonton. [ 24 ] Dr. Willox made no notes of his conversation with Dr. Muir, as it was not his practice to do so for “routine things”.

Their conversation lasted about five minutes. He testified that he relayed Dr. Muir’s advice of conservative treatment and serial ultrasounds to J.S. and told her she was not a candidate for the Shirodkar suture. [ 25 ] I find that J.S. had at least two discussions with Dr. Willox about cerclage, the first when he made the July 4, 2000 entry on her prenatal record about her mother having had an incompetent cervix and a Shirodkar suture, and next on October 3, 2000. At one of those appointments, he referred to a patient who had a cerclage and went over-term by 2 weeks.

While J.S. vaguely recalled a third discussion, she was unable to provide any details of it. [ 26 ] Dr. Willox acknowledged that after the October 3, 2000 visit he did not have a diagnosis as to why the internal os was open. However, he stated that he could rule out cervical incompetence, as it required at least one prior unexpected delivery in the early stages of pregnancy; by definition, it was not cervical incompetence. He was satisfied at the time that there was no evidence of an infection and no reason to order lab tests.

His thinking at the time was that it was just a coincidence that J.S.’s mother had a history with cerclage. [ 27 ] Dr. Muir testified that he frequently received calls from family physicians. He did not recall receiving a telephone call on October 3, 2000, or speaking to Dr. Willox on that, or any other occasion, regarding J.S., nor to his knowledge did he see J.S. as a patient. He made no notes of a call on October 3, 2000 with Dr. Willox. It was not his practice to make notes of such calls. He did not receive a fax copy of the October 2, 2000 ultrasound. [ 28 ] However, Dr.

Muir did testify as to his standard practice in 2000 on receiving a consultation call from a family physician. He described Dr. Willox, from whom he had received calls both before and after October 3, 2000, as an excellent physician. In a consultation call, he would typically be given information about: the age of the patient; the number of previous pregnancies and deliveries - in this case, a first pregnancy; and how many weeks along the patient was - in this case, 20 weeks. He would have been provided with a clinical history - in this case, describing her cervix as closed, thick and long.

He would have been provided with the results of the ultrasound - in this case, the open internal os with fluid bulging toward the external os. While the October 2, 2000 ultrasound would have raised a flag or marker for pre-term birth, his advice, according to his standard practice, would have been to “essentially do nothing”, which he described as an “expectant management” plan, as the cervix was closed and thick. This plan involved getting the patient off her feet and avoiding sexual intercourse, heavy lifting and standing for long periods. [ 29 ] Dr.

Muir testified that he would have advised a general practitioner to check the patient clinically from time to time and follow up with another ultrasound. He testified that he would have expected the consultation by telephone with Dr. Willox to have been very brief - a matter of a couple of minutes. [ 30 ] Dr.

Muir acknowledged that the purpose of a repeat ultrasound would be to look for changes in the cervix - funneling or a change in cervical length - and that it would be important to identify any such changes, augmented by clinical examination, before the pre-term delivery process started. [ 31 ] J.S. next attended on Dr. Willox on October 13, 2000, the date of her previously scheduled monthly appointment. Dr. Willox testified that he reassured J.S. that there had been growth, the baby was moving, and there was no sign of any fever.

He advised her to return after the ultrasound, which he scheduled for October 25, 2000. [ 32 ] J.S. testified that on the morning of October 13, 2000, she had passed a very small amount of jelly-like discharge, which she described as “thickened silicone” that was a little opaque. It stuck in her mind, and she thought in hindsight that it was part of the mucus plug. She noted, “concern re jelly” in different ink on the October 13, 2000 box on a calendar she kept at the time. She stated she made notations in black ink on her 2000 calendar before K.S. was born.

However, the black ink used on all other notations was of a different type than the black ink used for this particular notation. She believed she wrote the entry in black ink “4 days to u/s” on October 21, 2000 on her calendar when she still had a feeling of optimism.

[ 33 ] J.S. testified that when Dr. Willox examined her on October 13, 2000, there was some discharge on his glove of the same consistency. He told her that her cervix was unchanged from the last visit, that the discharge was normal and was nothing to worry about, and to wait for the ultrasound. The October 13, 2000 entry on her pre-natal record, completed by Dr. Willox, described the cervix as unchanged and thick (1 cm) and called for a repeat ultrasound “2/52”, meaning in 2 weeks. [ 34 ] Dr. Willox did not recall J.S.’s October 13, 2000 visit.

There was no notation on the prenatal record entry of that date of any discharge. He stated that the prenatal record was not intended to set out every detail of the examination and he would not record something he did not consider to be significant. On October 13, 2000, he would have ordered an ultrasound in 2 weeks’ time and arranged for J.S. to see him again 1 week following the ultrasound. As for the expectant management plan, he acknowledged that if more funneling were observed, he probably would have called Dr. Muir again.

He acknowledged that in his Examination for Discovery testimony he stated that he reassured J.S. at the time that “things were going great”, however the caveat was still that she was at risk of miscarriage. [ 35 ] J.S. made an October 19, 2000 calendar entry indicating “noon – noticed trace blood in discharge”. She did not immediately call Dr. Willox, as it was a small amount. However, she noticed more spotting the next morning. Her next scheduled appointment being November 2, 2000, as verified by her calendar, but she was able to immediately obtain an appointment with Dr. Willox. She recalled Dr.

Willox performing a pelvic examination on October 20, 2000. He told her spotting could be normal at this stage, that everything still felt fine and that he would have more information from the ultrasound booked for October 25, 2000. He did not speak to her about seeing an obstetrician or perinatologist during the appointments on October 13 or 20, 2000. [ 36 ] While Dr.

Willox had no recollection at trial of J.S.’s October 20, 2000 visit, he stated he would have been alive to the issue of infection on that date and at the earlier appointments, and would have looked for signs of infection: fast heartrate, fever and any significant vaginal discharge. As a matter of standard practice, he would have felt J.S.’s belly for any tenderness. He noted no cramping or sign of infection. His October 20, 2000 reference on the prenatal record to pinkish discharge meant that there was a small amount of blood. He could not recall if J.S. told him this or if he found this when he examined her.

Her cervix was unchanged on examination from the previous visit; it was still closed and thick. [ 37 ] J.S. noted on her calendar on October 21, 2000, “worried, still blood in dischg. 4 days to u/s”. She testified that she felt that night like she needed to go to the bathroom, a feeling like constipation, and twinges. At one point, she passed stool, then was able to sleep. She could not recall having any discharge, except for the indication to that effect in the October 21, 2000 entry on her calendar. Dr.

Willox had told her about signs of premature labour, including bleeding and cramping, however, she did not think she was in labour on October 21, 2000 and did not think to attribute what she thought was constipation to labour. C. Delivery of K.S. [ 38 ] J.S. recalled that she kept having painless twinges, although not close together, on October 22, 2000. It did not feel any different from the feeling when going to the bathroom, just that it was more urgent.

She and her husband, D.S., went out that morning, but she had a feeling there was something wrong and they proceeded to the emergency ward at the Peace River hospital, arriving at 12:15 p.m. according to Emergency room records. There she was told that she was 7 cm dilated and would be flown to Edmonton. An Emergency room note recorded her complaints of lower abdominal cramping that had started in the evening of October 21, 2000. An ultrasound was performed and magnesium sulfate was administered to slow contractions. On the hospital chart, “leaking” was checked off under the heading “membranes”.

A progress note referred to “progressive cramping since last pm – she at the time didn’t know it was contractions – feeling twinges more frequently”. The ultrasound report of October 22, 2000 stated: At 16:20 – There is a pregnant uterus present with a single fetus with the head low. The membranes are bulging into the internal os which is widely open measuring 3.74 cm across and the external os at least 2.52 cm across. There is satisfactory amount of amniotic fluid. Placenta is anterior and does not encroach the os. No placental separation.

Fetal heartbeat has been easily recorded with a heartbeat of 187 beats per minute. The BPD measurement is 5.56 cm, head circumference 21.03 cm, femur length 3.88 cm, abdominal circumference 19.51 cm. These measurements correspond to 23-23-22-24 week gestation, with a composite age of 23 weeks and estimated fetal weight of 608 grams. Detail of fetal anatomy was not assessed at this time. COMMENT: Single fetuses with the head low, but the membranes are bulging into the internal os, which is widely open as is the external os. Fetal heart has been easily recorded. Measurements as described.

Please note that the fetal head is still proximal to the extremely dilated internal os. [ 39 ] The maternal nursing database at the Peace River hospital indicated that her contractions had started at 11:00 and were occurring every 10 to 20 minutes. Her temperature was noted to be 37.4 degrees. The Vital Signs record indicated mild contractions lasting from 10 to 40 seconds and varying from every 4 to 12 minutes between 1:50 p.m. and 3:15 p.m., then slowing down to 17 minutes to 30 minutes apart at 4:30 p.m. [ 40 ] Dr.

Willox recalled seeing J.S. in emergency at the Peace River Hospital on October 22, 2000 and giving her some reassurance and emotional support. While he testified at Examination for Discovery that he believed on that date that J.S. had an incompetent cervix, at trial, he stated that at that time he was not aware of the pathology report on the placenta indicating the presence of infection. [ 41 ] J.S. was transported to Edmonton by plane, under the care of Dr. Coewen, to the RAH in Edmonton on October 22, 2000 at 5:00 p.m., arriving at 7:18 pm. She was started on magnesium sulfate, ampicillin and dexamethasone.

Dr. Lemke’s NICU consultation report at 8:30 p.m. on October 22, 2000 noted the onset of premature labour and dilatation to 7 cm, “?ROM” (rupture of membranes), and that the membranes were “hourglassing”. Dr. Lemke recorded J.S.’s instructions not to perform a caesarian

section delivery in the event of fetal distress. [ 42 ] Dr. Okun, a perinatologist on duty at the RAH, reported on an ultrasound performed on October 22, 2000, noting “last week, cramps on weekend then more cramps. Initial pv exam Friday indicated → closed. Then yesterday, more dilated. Transferred at 7 cm

with bulge of membranes”. Dr. Okun recorded some fluid leakage overnight. Her report also noted: [M]other had incompetent cx. Had suture with patient when pregnant & her sibling. No known HX of uterine malformation. Mother may have had medications during pregnancy with her to prevent S.A. [ 43 ] Dr. Okun’s report also noted “the fetus was active and hourglassing membranes, but ++ bloody, mucusy discharge”, and referred to “possible incompetent cervix? ROM ? bleeding. Would not advise suture due to placental position, possible ROM, APH. Advise continued rest and expectant management”.

The report further noted “suture next pregnancy”. J.S. confirmed that she would have related the history of her mother’s incompetent cervix as part of her family history at the RAH. She recalled being advised at the RAH that cerclage was not an option, as she was beyond the point of no return, with everything already bulging. She understood at the time that her membranes had already ruptured. [ 44 ] According to the RAH delivery record, J.S.’s labour started at 22:30 pm on October 23, 2000 and she was fully dilated at 12:15 a.m. on October 24, 2000.

Her temperature remained in the normal range from her admission on the evening of October 22, 2000 until approximately 4:00 a.m. on October 24, when it rose to 38 degrees C. By 12:15 a.m. on October 24, she was experiencing contractions every seven to nine minutes, with no urge to push. Syntocinon was administered to augment labour at 5:15 a.m. The delivery record noted that J.S. started pushing at 6:50 a.m. and delivered K.S. at 6:56 a.m. D. K.S.’s Health in Infancy [ 45 ] The RAH discharge

summary of October 31, 2000 noted that at birth, K.S. ’s chest was quite stiff and required high pressure ventilation to inflate it. He was started on mechanical ventilation and antibiotics. According to the discharge

summary, K.S. had the following conditions for which he received treatment:: Severe Hyaline Membrane Disease: treated with two doses of Surfactant, which improved his respiratory status. Cardio-vascular system: K.S. had severe hypertension requiring treatment with infusions. His blood pressure was unstable at times and required some support with inotropics. At age 2 days, a PDA (Patent Ductus Arteriosus) was identified, requiring surgical repair. ? Sepsis: A septic workup was done at birth, because of K.S. ’s prematurity and he was started on antibiotics.

As all the cultures were negative, the antibiotics were discontinued at 3 days of age. As a result of unstable blood pressure at 5 days of age, a second septic workup was done. He was started on further antibiotics and cultures were again negative. Central nervous system: Two ultrasounds of the head were normal. Fluids and nutrition: Fluid requirements were high, because of progressive weight loss and dehydration. [ 46 ] On October 31, 2000, K.S. was transferred to the University of Alberta Hospital NICU. On November 3, 2000, a surgical ligation of the PDA was performed successfully. The discharge

summary dated November 8, 2000 from the Stollery Children’s Health Centre NICU reported that K.S. was in stable condition on admission with moderate ventilator support. A chest x-ray performed on admission showed marked pulmonary edema. K.S. was started on a short course of dexamethasone. He was noted to have developed transient hypotension and some acid-based fluid, an electrolyte disturbance, which were treated. He was started on antibiotics after blood cultures performed on November 6, 2000 grew gram-positive cocci in clumps.

He developed Stage 4 retinopathy of prematurity, which led to retinal detachment of the right eye and a scleral buckle procedure was performed. In the middle of November 2000, K.S. developed acute renal failure. He was treated with a 3 week course of erythromycin for urea plasma and a vesicostomy was performed in mid-December, as it was impossible to catheterize him. [ 47 ] On his discharge to the care of Dr.

Malinowsky on February 22, 2001, the diagnosis was extreme prematurity, severe chronic lung disease, retinopathy of prematurity with retinal detachment, seizures, cerebral ventriculomegaly, acute renal failure, hydronephrosis, vesicostomy, urea plasma infection, and gram-negative sepsis. [ 48 ] K.S. underwent surgery in March 2001 for an incarcerated hernia. A follow-up scleral buckle was performed on June 13, 2001. Dr. Malinowsky provided the following diagnosis in his discharge

summary of May 1, 2001: extreme prematurity, seizures, retinopathy, sepsis, posterior urethral valves and inguinal hernias. [ 49 ] In regard to K.S. ’s brain, the interim

summary of Dr. Sreenan of February 22, 2001 reported that K.S. had developed a severe chronic lung disease of prematurity and remained ventilated until early January 2001, then required a high-flow nasal cannula until the middle of February. Dr. Sreenan’s

summary also reported that head ultrasound scans showed ventriculomegaly without any evidence of intraventricular hemorrhage. A July 27, 2001, an MRI report indicated the following: FINDINGS: There is a paucity of periventricular and deep white matter. As a result, there is prominence of the lateral and third ventricles. A normal flow void is seen within the cerebral aqueduct. The corpus callosum is markedly thin. There is a delay in myelination. ... IMPRESSION: Paucity of the periventricular white matter with result in dilation of the lateral and third ventricles.

The pattern of myelination is delayed for a patient of his age. A further MRI of the head was performed on February 1, 2002, which again noted the lateral ventricles to be enlarged, in keeping with loss of periventricular white matter. Extensive central white matter lost, probably representing a form periventricular leukomalacia. [ 50 ] K.S. was assessed at the Glenrose Hospital on September 6, 2001. At that time, it was noted that his left eye had regressed and he was prescribed glasses. He had a revision vesicostomy on October 29, 2001 and there were no further problems with his urinary tract

thereafter. [ 51 ] K.S. was again assessed at age 10½ months at the Glenrose Hospital and the report noted his relatively short attention span, difficulties focusing, and some disorganized and immature movements with some delays in development. J.S. noted that K.S. was easily distracted by sounds. [ 52 ] In a Glenrose review assessment of September 23, 2002, at the chronological age of 1 year, testing showed severe cognitive and communication delays. E. K.S.’s hea l th in his childhood and teenage years [ 53 ] K.S. saw Dr.

Felix Odaibo, a Grande Prairie pediatrician and neonatologist, on 4 occasions between the age of 5½ months and 3 years. A Glenrose Hospital review assessment of April 15, 2004 (at age 3½ years) recorded his attendance at daycare 4 hours per day with the help of an aid, that he had very limited expressive vocabulary and that his cognitive abilities were at about the level of a 15 month old.

He was in the first percentile for fine motor skills, communication and language. [ 54 ] A psychological assessment was performed in June 2007 (at age 6 years, 7 months) for the purpose of developing an appropriate special education program for K.S. It noted that he did not engage much with others, had a short attention span and his intelligence testing was far below average, with severe deficits in verbal comprehension, working memory, perceptional reasoning and processing speed, all of these sub-categories being at the 0.1 percentile.

His functional independence was very limited, his motor skills were limited to very limited, and his social interaction and communication skills were very limited to negligible. The report also noted moderately serious behaviour problems. [ 55 ] Dr. Martin Eckhart was K.S. ’s family doctor from 2002 until 2015, when Dr. Eckhart relocated to Nova Scotia. J.S. reported in January 2014 that K.S. was acting out at school, becoming frustrated very quickly, stomping and yelling more, although she had not noticed a huge difference in his behaviour. Dr.

Eckhart’s expert report provided the following diagnoses: - severe global development delays, at 13 years old functioning at grade 2-3 level; - anxiety +- Autism – behaviour outbursts at school, Autism with reference to Dr. Soper, Luvox; - hemianopia due to Stage IV retinopathy of prematurity (blind right eye, expectable vision left eye with correction and assumed decreased field of vision). [ 56 ] However, Dr.

Eckhart’s report noted that K.S. ’s seizure disorder had resolved along with the acute renal failure he had experienced as an infant. [ 57 ] As K.S. was becoming more verbally aggressive and difficult to handle at school, Dr. Eckhart referred him to Dr. Kyriakides, an Edmonton pediatrician, who saw K.S. once in May 2014, to assess whether there was any physical reason for his emotional lability over the previous 6 months. She noted his major outbursts usually occurred when he became startled or scared, which produced behaviours such as yelling, stomping and throwing objects.

She had not reviewed a Glenrose Hospital Composite Report dated June 22, 2015, which identified the main concern as being his emotional dysregulation and behaviour outbursts. That report went on to conclude: “Based on all information gathered, the consensus was that [K.S.] does meet criteria for an Autism Spectrum Disorder – agreed that in addition to moderate mental handicap caused by his brain injury, he also has Autism”. Dr. Kyriakides acknowledged in her testimony that K.S. required some additional strategies for his Autism, separate and apart from his brain injury. [ 58 ] Dr.

Paul Soper, a psychiatrist who has been employed at the ADHD Clinic at the Glenrose Hospital since 2007, participated in telepsychiatry conferences regarding K.S. between February and December 2014. He prepared a report and prescribed Luvox for K.S.’s behavioural difficulties. Dr. Soper recommended the Glenrose assessment to confirm the autism diagnosis. He identified as chief complaints K.S.’s social deficits, emotional dysregulation related to triggers and poor executive functioning. K.S. reacted to loud noises and to reminders of scary events.

Although enrolled in Grade 8, K.S. was academically at the Grade 2 level. The Glenrose Composite Report dated June 22, 2015 noted K.S.’s perceptual reasoning to be significantly better developed than his verbal comprehension. His written communication was at an age 7 years, 10 months level, while his expressive communication was at a 2 years, 10 months level. [ 59 ] K.S. was registered, at the time of trial, in Grade 9 at Peace River High School, in his own classroom with a team of educational aids closely guiding him through his individual education plan each school day. He enjoys playing videos on his computer.

Educational aids to engage his interest include an iPad, a whiteboard, a smartboard and enlarged reading materials. He has problems with auditory processing of information. He requires a very structured and predictable learning environment. His computer skills are very developed; according to his mother, his typing is “phenomenal”. While his spelling is good, she described his writing as “atrocious”. [ 60 ] K.S. has lived with his parents since birth. He has no siblings. J.S. described K.S. as generally happy and easygoing. His daily routine is to wake up when it is time to get up.

He is prompted to go to the bathroom and can wash his face and dress with minimal oversight. He can pour his cereal and milk. He is prompted to put his jacket on, can strap himself into the car and walks from the car to the school door 50 feet away. After school, he plays on his computer or the piano. While he cannot read music due to his poor eyesight, he is able to learn piano pieces by ear and has a collection of approximately a half-dozen pieces. His food at suppertime is cut up for him. He can change into his pyjamas and brush his teeth. He has no ability to hold a conversation. III.

Preliminary Issues - Exhibits A. Documents in Agreed Exhibits (Exhibits 1 and 2)

[61] At the outset of the trial, the issue arose as to how the Court is to address the great quantity of documents filed (close to 3,000pages in the seven-volume Agreed Exhibit 1). Counsel explained that much of the documentation consisted of hospital charts andmaterials, notes and materials relating to K.S.’s medical history over the past 15 years, and documents relating to his progress throughthe Peace River school system. Agreed Exhibit 2 contained a large amount of material relating to the funding of various aspects of K.S.’scare over the years.

Counsel explained that the voluminous amount of documentation was included in the Agreed Exhibits, as the variousexpert witnesses who testified at trial may have reviewed these materials. [62] I directed at the outset of the trial that unless a particular document in the 7-volume Agreed Exhibit 1 and the single-volumeAgreed Exhibit 2 was referred to in counsel’s respective opening statements, by a particular witness or in counsel’s closing arguments, Iwould not speculate or attempt to determine how a particular document out of hundreds was relevant to an issue at trial.

This was soparticularly in relation to the vast number of hospital charts, many of which were handwritten and illegible. Accordingly, I maintained alist of the written materials in the Agreed Exhibits that were specifically mentioned by counsel or a witness in the Plaintiff’s and theDefendants’ respective cases, which were marked as Exhibits “F” and “K”.

Very few references were made for the first time in thewritten and oral closing arguments of counsel to additional materials (not earlier associated with a witness’s testimony) contained inExhibits 1 and 2, save for a generic reference by Plaintiff’s counsel to travel expenses and funding related documentation in Exhibit 2,Tabs 1, 8-10, 17, and 19. [63] Accordingly, while Agreed Exhibits 1 and 2 were marked as formal exhibits, counsel understood that it was theirresponsibility during the course of the trial to link particular documents within them to a particular witness or issue in argument, failingwhich I would not take note of the document.

B. Evidentiary Value of Agreed Exhibits [64] In a pre-trial conference, I directed counsel to clarify when seeking to admit documentary evidence without its author how Iwas to address the evidentiary value of the document, i.e. whether the document was being admitted for the truth of its contents, orsimply for the fact that it was written or generated on a particular date by a particular individual or entity.

Counsel accordingly filed asExhibit 3 at trial a document entitled “Agreed Exhibits” which set out their agreement as to how documents were to be considered whenadduced in evidence: - statements of fact contained in the records were admissible for their truth subject to issues of relevance and the ability of the trialjudge to accept or reject any such statement of fact; - the parties were entitled to adduce other evidence to confirm, vary or contradict any statement of fact and the relative weight to begiven to the statement of fact or other evidence was for the trial judge to decide; - records containing statements of fact based on observations made by the person who made the statement were to be taken asevidence of that person’s observation; - where a record contained a statement of fact based on information provided by a person other than the person who made therecord, the statement was to be taken as evidence that the information was provided by the other person but was not evidence of the truthof the information unless admissible for the truth under the rules of evidence. [65] As to statements of fact containing opinions, the parties agreed that the statement was to be considered as if the author hadgiven the evidence under oath at trial and, subject to evidence to the contrary, that the author was qualified to give such evidence.Agreeing to have a treatment record entered as evidence without calling the witness was not, without more, an admission of the truth orcorrectness of the evidence submitted.

A statement of opinion included for these purposes a diagnosis of a medical condition, opinions asto cause of medical conditions and inferences drawn from observations made by the author of the statement or record. [66] Finally, financial records in the Agreed Exhibits were admitted into evidence on the basis that the records were evidence onlythat the expenses they referred to were incurred, not that they were compensable. C.

Evidentiary value of peer-reviewed scientific/medical literature [67] A large number of peer-reviewed medical journals and articles (none of them included in the Agreed Exhibits to which theExhibit 3 agreement between counsel referred) were put to expert witnesses called at trial. In many instances, the expert witness, whilerecognizing a particular medical journal, was not familiar with or could not recall having read the

article in question. Some expertwitnesses cited various articles, textbooks and medical guidelines in their expert reports. Counsel for the Plaintiff maintained that eachparty was entitled to challenge expert witnesses with peer-reviewed medical literature that presented opinions that were inconsistent or indisagreement with the opinions and conclusions in the medical literature cited by a particular expert in his/her expert report. If an expertwitness adopted the opinion put to him or her through the presentation of peer-reviewed literature, it became substantive evidence.

If not,then it did not. [68] Counsel for the Defendants pointed out that the peer-reviewed medical literature was hearsay if offered for the truth of itscontents.

Accordingly, unless the manner in which a particular study was conducted and its conclusions were adopted by an expertwitness as being accurate, the medical literature would stand only as evidence of what was said or done by way of study or research butnot of the accuracy of its methodology or conclusions. [69] The Defendants referred to Ed Miller Sales & Rentals Ltd v Caterpillar Tractor Co (1991), (AB KB), 126AR 187, [1991] AJ No 1122 (QB) wherein Berger J. (as he then was) considered the circumstances in which the opinion of an author,not present in court, is admissible as substantive evidence and, where not admissible, the use that can be made of the author’s opinion.Relying on J Sopinka and SN Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at 326, he held that if thewritten work forms a basis for the expert’s opinion, then the written view of the author becomes the opinion of the witness.

In a case

where the author is acknowledged by the expert witness to be authoritative in the expert witness’s field of expertise, but the expertwitness does not adopt the opinion of the author, the text may then not be used for the purpose of proving the truth of the opinion, but forthe purpose of testing the value of the witness’s opinion.

As noted in Sopinka and Lederman at 327: …it becomes not positive evidence, but as in the case of the cross-examining tool of prior inconsistent statements, it is utilized tochallenge the expert’s credibility, to test whether the witness has intelligently and competently read and applied what has beenauthoritatively written on the subject… [70] The Defendants also referred to R v Marquard, (SCC), [1993] 4 SCR 223 at 251, [1993] SCJ No 119: The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask thewitness if she knows the work.

If the answer is “no”, or if the witness denies the work’s authority, that is the end of the matter. Counselcannot read from the work, since that would be to introduce it as evidence. If the answer is “yes”, and the witness acknowledges thework’s authority, then the witness has confirmed it by the witness’s own testimony. Parts of it may be read to the witness, and to theextent they are confirmed, they become evidence in the case. [71] Counsel for the Defendants pointed out that according to Dr.

Chari, a perinatologist called by them as an expert witness attrial, approximately 120 articles are published each year in the Journal of Obstetrics and Gynecology Canada and the American Journalof Obstetrics and Gynecology alone. Dr. Young, another expert witness called by the Defendants, noted that there were potentiallyhundreds of papers on the topic of cervical insufficiency. The Defendants submitted that given this plethora of literature, physicianscould not alter their practice in patient management based on findings from studies, surveys or research conclusions.

For this reason,guidelines such as those issued by the SOGC synthesizing and evaluating the vast body of literature are principally relied on to guidepractice. [72] Where the author is not acknowledged by the expert witness to be authoritative in his or her field of expertise, the situation, asBerger J. noted, is more difficult.

He cited the comments of Harvey C.J. in Rex v Anderson (1914), (AB CA), 16 DLR203 at 206-207, [1914] AJ No 34 (SC): On cross-examination the judge should be careful to see that an improper use is not made of text-books, practically to give in evidenceopinions of absent authors at variance with those of the witness.

It is quite apparent that if the witness is asked about a text-book and heexpresses ignorance of it, or denies its authority, no further use of it can be made by reading extracts from it, for that would be in effectmaking it evidence… [73] Berger J. considered the situation where an expert witness, without more, refuses to acknowledge that the author isauthoritative, with a view towards thwarting a probing cross- examination.

He set out a process to address the situation, by way of anundertaking by cross-examining counsel to lead evidence later from another expert, who will acknowledge that the author is authoritativeand will adopt the author’s opinion as his own.

However, this approach, he observed at 189 would open the door to a “plethora ofcollateral issues touching upon whether authors not before the Court are or are not authoritative in their purported areas of expertise”. [74] I do not accept the Plaintiff’s submission that the articles and studies put to witnesses, that were not adopted by them asauthoritative, fit within a necessity/reliability analytical framework.

Plaintiff’s counsel made the point in written argument that it is veryunlikely any of the experts who testified in the trial went to the trouble of somehow independently assessing all of the studies cited injournal articles. In fact, the vast majority of studies put to experts in cross-examination were not made available to them to review prior totestifying.

I do not consider it appropriate to take some form of judicial notice that most, if not all, of the medical articles were authoredby healthcare professionals working at university-based hospitals, many of the studies being approved by ethics committees, as asufficient foundation for a finding of inherent reliability. As for necessity, while it would certainly be very impractical to require alitigant to call a healthcare professional who authored an

article as a witness, given the over 50 articles and studies filed as Exhibits inthis case, this concern might have been remedied by providing the

article or study to the expert witness in a timeframe that would havegiven the expert witness a reasonable opportunity to consider whether the source was authoritative, and to carefully review the findingsand conclusions. While I acknowledge that the presentation of articles and studies to an expert witness arguably indicates that otherhealthcare professionals, usually physicians, may have a different view from the expert testifying, unless the

article or study is acceptedas authoritative by the expert witness, I am not in a position to weigh the relative merits of the opinions expressed in the study or articlewith the opinions expressed by the expert on the stand. [75] I am of the view that the position taken by the Defendants more closely aligns with the comments of Berger J. in Ed MillerSales. While the contents of the various studies and articles are evidence as to what was said in them, unless the expert witness expressedagreement with the methodology and/or legitimacy of the conclusions reached or adopted both when presented with the peer-reviewedliterature, then the

article or study will not be accepted for the truth of its contents. IV. Negligence in Failing to Perform a Cerclage [76] There are four elements to a successful cause of action in negligence: 1) the defendant must owe the plaintiff a duty of care,2) the defendant must breach the standard of care established by law, 3) the plaintiff must suffer an injury or loss, and 4) the defendant’sconduct must have been the actual and legal cause of the plaintiff’s injury. The four elements of negligence must be consideredsequentially.

Failing to prove one of these elements means that the plaintiff’s onus has not been met: EI Picard and GB Robertson, LegalLiability of Doctors and Hospital in Canada, 4th ed (Toronto: Thomson Canada Limited, 2007) at 212. [77] There is some debate as to whether the cause of the injury should be addressed before deciding upon the applicable standardof care. Counsel for the Plaintiff referred to an

article authored by M Faille, “Which came First: The Causation Chicken or the Breach ofDuty Egg? The Ordering of the Causation Analysis in Medical Malpractice Cases” (2003) 27 Advoc Q 394 at 396-401. The authornoted the importance of distinguishing between legal “causation” and “cause”. “Causation” refers to the relationship that must be foundbetween a tortious act and the injury. “Cause” refers to the physical cause of the injury. Where there is some dispute, as in this case, as to

what caused the losses and injuries sustained by the plaintiff, it may be important to make that determination at the outset, as thephysical cause of the injuries and losses might inform the determination of whether there is a causal connection between any allegedbreach of the standard of care and the injuries and losses suffered by the plaintiff.

Where there is no actual causal connection betweenthe actions, advice or treatment of the defendants and the injuries sustained by the plaintiff, there can be no liability. [78] In this case, the Defendants maintain that performing or not performing a cerclage on J.S. was entirely irrelevant to theoutcome. The physical cause of the pre-term delivery was a pre-existing infection of the placental membranes inevitably leading tolabour and delivery.

The infection was not itself caused by the opening of the cervix but was contracted earlier in the pregnancy.Cerclage would not have avoided the extremely pre-term birth caused.

According to this theory of causation, the injuries suffered by K.S.could not be attributed as a matter of physical causation to any negligent actions of the Defendants. [79] Added to the complexity of the causation issue in this case, however, is that the Defendants were not aware, prior to K.S.’sbirth, of the physical cause of a developing injury, an alleged subclinical infection where there were no identifiable clinical signs ofinfection until after labour had begun.

In such a case, the standard of care may be engaged in determining whether anything occurred inthe care of J.S. that would have prevented the infection from becoming the cause in fact of the injuries and losses suffered by K.S. [80] In the circumstances, I am compelled to deal with the issues of legal and actual causation in the order directed in McArdleEstate v Cox, 2003 ABCA 106, 327 AR 129: 25 It is a critical fault to reorder negligence analysis by placing the causation before that of the standard of care.

How can a judgedecide whether, but for the defendant’s substandard action, the plaintiff would not have been injured if the characterization andapplication of the standard of care decision depends on the causation issue? The suggestion that causation be analyzed before standard ofcare truly is putting the cart before the horse. A. Duty of care [81] Counsel for the Defendants admitted that the first element of negligence has been proven, namely, that each of the Defendantphysicians owed a duty of care to J.S.

As noted in Legal Liability of Doctors and Hospitals in Canada, supra at 213, the duty placed onthe physician is to exercise care in all that is done to and for the patient, which includes attendance, diagnosis, referral, treatment andinstruction. Perhaps the most fundamental characteristic of the doctor-patient relationship is its fiduciary nature: Norberg v Wynrib,(SCC), [1992] 2 SCR 226 at 270-71, [1992] SCJ No 60. [82] The Defendants also conceded that it was reasonably foreseeable that their actions, advice or course of treatment may causeharm to a third party, in this case K.S.

There was a sufficiently proximate relationship between the Defendants and K.S. such as to giverise to a duty of care to him. The Defendants also conceded that an infant, once born alive, can sue for prenatal injuries: Liebig(Litigation Guardian of) v Guelph General Hospital, 2010 ONCA 450, [2010] OJ No 2580 at para 6. B. Standard of care 1. Law [83] Our Court of Appeal explained in Allen (Next friend of) v University Hospital Board, 2002 ABCA 195 at para 8, 312 AR 59that identifying the appropriate standard of care is a question of law. Whether it has been met is a question of fact.

The trial judge mustdetermine the appropriate standard of care by which to measure the alleged negligence prior to determining whether the standard of carehas been met: Meyers v Moscovitz, 2005 ABCA 114 at para 28, 363 AR 262. [84] Physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent physician in the samecircumstances. Another way of putting this test is that a physician must meet the standard of a normal, prudent practitioner of the sameexperience and standing.

A physician undertakes that he or she possesses and utilizes the skill, knowledge and judgment of the averagereasonable physician in the same field: ter Neuzen v Korn, (SCC), [1995] 3 SCR 674, [1995] SCJ No 79.

As for thestandard of care of a rural physician, as noted in Dybongco-Rimando Estate v Lee, [2001] OJ No 3658 at para 129, [2001] OTC 682(Sup Ct J), the “locality principle” is intended to shield doctors and hospitals from unfair expectations in respect of technology andtraining, but not to protect them against mere inconvenience. [85] Given the advent of national standards of competence set by professional examinations and continuing medical education,there seems to be less need to lower the standard of care on the basis of locality alone: Legal Liability of Doctors and Hospital inCanada, supra at 251.

In Crawford (Litigation guardian of) v Penney (2003), 14 CCLT (3d) 60, [2003] OJ No 89 at para 251 (Sup CtJ), Power J. cited M Linden, Canadian Tort Law, 6th ed (Toronto: Butterworths, 1997) at 157-160 to the effect that the “locality rule”should be abandoned, given improvements in modern communication, medical education and the uniformity of examinations of doctorsin Canada. [86] Nevertheless, if the doctor can show that because of geographic location, adequate facilities, equipment, or staff were notavailable, then the standard of care the doctor must meet ought to be altered accordingly but not necessarily lowered.

Accordingly, I findthat the standard of care of a rural Alberta general practitioner is presumptively the same as that of his or her urban counterpart subject toevidence establishing that access to particular facilities, equipment or staff was lacking in this case. [87] A specialist is expected to possess and demonstrate a greater degree of skill in his or her area of specialization than that of ageneral practitioner.

The specialist’s conduct must be assessed in light of the conduct of other ordinary specialists who possess areasonable level of knowledge, competence and skill expected of professionals in that field in Canada. Simply put, a specialist mustexercise the degree of skill of an average specialist in his or her field: ter Neuzen at para 33; Wilson v Swanson, (SCC),[1956] SCR 804 at 817, [1956] SCJ No 58.

[88] As pointed out by Plaintiff’s counsel, the Court may rely on a specialist’s evidence to establish the standard against which ageneral practitioner’s conduct is measured, as the specialist was trained as a general practitioner before acquiring a specialty: Briffett vGander and District Hospital (1996), (NL CA), 137 Nfld & PEIR 271, [1996] NJ No 34 at para 48 (CA), cited inMalinowski v Schneider, 2010 ABQB 734, [2010] AJ No 1380 at para 16; see also Robinson v Sisters of St Joseph of the Diocese ofPeterborough in Ontario, (1999) (ON CA), 117 OAC 331 [1999] OJ No 530 at para 1 (CA).

Similarly, there is norule that a “super specialist”, such as a perinatologist, is prevented from offering an opinion as to the applicable standard of care of aspecialist, the super-specialist having experience in the specialty: Hunt (Guardian ad litem of) v Szirmay-Kalos, 2005 BCSC 496,[2005] BCJ No 737 at para 158.

However, the court must be careful not to apply the standard of care expected of a specialist to that of ageneral practitioner and the evidence of a specialist does not establish the standard of care for a general practitioner: Tsopotos (Nextfriend of) v Tepperman, [1990] OJ No 2339 at para 40 (Gen Div). [89] Counsel for the Plaintiff noted the conclusion in Rupert v Toth (2006), (ON SC), 38 CCLT (3d) 261,[2006] OJ No 882 at para 109 (Sup Ct J), that where there are no differences between qualifications, skill levels, or access to facilitiesand knowledge between specialists, the community in which the specialist practices is irrelevant and the standard of care ought to be thesame between physicians in similar circumstances.

In that case, Low J. noted that otolaryngologists are qualified to a national standardand there was no demonstrated difference in the qualifications, level of skill, or access to facilities and repositories of knowledge asbetween those practising in an urban environment in Ontario and those practicing in an urban environment in Nova Scotia.

If, however,the expert is not familiar with the available resources and the accepted practices in the defendant physician’s community, this may welldiminish the weight the court gives to the expert’s evidence: Legal Liability of Doctors and Hospital in Canada, supra at 250. [90] I find that Dr. Muir owed to J.S. and K.S. the standard of care expected of a reasonable and prudent obstetrician practising in arural setting. Having said this, there was no suggestion in the evidence of any limitation in Dr.

Muir’s access to other obstetricians andperinatologists in Edmonton or Calgary for the purposes of a telephone consultation or referral if the situation required it. [91] The degree of foreseeable risk involved in a procedure or treatment is an essential determinant of the appropriate standard ofcare to be exercised by the physician. As the degree of risk increases, so does the physician’s standard of care: McArdle Estate at para27. [92] The alleged acts of negligence having occurred in 2000, over 15 years ago, the standard of care must be determined as at thetime of the treatment.

The conduct of the physician must be judged in light of the knowledge he ought to have reasonably possessed atthe time of the alleged act of negligence: ter Neuzen at para 34. Adapting the comments of Denning L.J. to the circumstances here, “wecannot look at the 2000 incident with 2016 spectacles”: Roe v Minister of Health, [1954] 2 All ER 131 at 137 (CA), cited in ter Neuzenat para 34. [93] Physicians owe particular duties as part of their standard of care, the most common being to thoroughly investigate and informthemselves of the patient’s condition.

The physician’s negligence is not to be judged by the result, nor is the physician liable for an errorin judgment. Negligence is to be determined “... by reference to the pertinent facts existing at the time of the doctor’s examination andtreatment, of which the doctor knew, or in the exercise of due care, should have known”: Chow (Litigation guardian of) v WellesleyHospital, [1999] OJ No 279 at para 192 (Gen Div).

The failure to use available time and facilities to take comparatively routine tests,steps and consultations that would have proved a diagnosis wrong was determined to be negligent in Bergen Estate v Sturgeon GeneralHospital District No 100 (1984), 52 AR 161, [1984] AJ No 2575 at para 28 (QB). [94] A physician is not liable for failing to reach a proper diagnosis or for administering improper treatment where it is a mereerror in judgment: Fournier v Wiens, 2004 ABQB 430, [2004] AJ No 643 at para 86.

As noted in Legal Liability of Doctors andHospital in Canada, supra at 281-282, the conduct of the physician is not to be measured by the result: Sometimes clinical judgment will be wrong, but that does not necessarily mean the doctor is negligent.

The law requires reasonable care,not infallibility, and even reasonable doctors make mistakes. [95] Implicit in the duty to diagnose is the duty to take a careful and thorough history, utilize available scientific equipment,facilities and tests, and consult and refer, all of which should be examined to determine the quality of the diagnosis: Scott v Mohan(1993), (AB KB), 142 AR 281, [1993] AJ No 592 at paras 53-55 (QB). See also: Thibert v Za-Tun, 2006 ABQB423, [2006] AJ No 758 at paras 110-11. A doctor is not expected to be infallible, only to exercise reasonable care, skill and judgment incoming to a diagnosis.

If this is done, the doctor will not be held liable even if the diagnosis is mistaken: para 108. [96] A physician, however, is not expected to arrive at a diagnosis in every case, particularly if the matter is outside his or her areaof expertise. In such cases, there is generally a duty to refer the case to a specialist with more knowledge in the area: Thibert at paras114-15.

As noted in Scott at para 57, citing Legal Liability of Doctors and Hospitals in Canada, supra the term “refer” may mean eitherthat the doctor confers with a colleague and then carries on treatment, or that the patient is transferred to the care of another doctor.Consultation is indicated when: (

i) the doctor is unable to diagnose the patient’s condition; (ii) the patient is not responding to thetreatment being given; (iii) the patient needs treatment which the doctor is not competent to give; (iv) the doctor has a duty to guardagainst his or her own inexperience (e.g. the student doctor); and (

v) the doctor cannot continue to treat a patient (e.g. while on vacation). [97] A referring physician must provide a consulting physician with all relevant information: Law Estate v Simice (1994), 21CCLT (2d) 228, [1994] BCJ No 979 at paras 37-39 (SC). Doctors are entitled to disagree over a diagnosis and treatment.

As noted inCherewayko v Gratton, (MB KB), [1993] 3 WWR 604, [1992] MJ No 639 at para 19 (QB), citing Maynard v WestMidlands Regional Health Authority, [1985] 1 All ER 635 at 638, in turn referring to Hunter v Hanley, 1955 SLT 213 at 217: In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligentmerely because his conclusion differs from that of other professional men ...

The true test for establishing negligence in diagnosis ortreatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guiltyof if acting with ordinary care ... ... Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom one answer

exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence. [ 98 ] A physician will not be liable if he or she chooses to follow one treatment option over another, both within the acceptable standard of care. There is a difference between considering two or more treatment options within the acceptable standard of care and choosing between two expert opinions, one indicating that the standard of care was met and the other that the standard of care was not.

As noted in Rogers v Grypma , 2001 ABQB 958 , [2001] AJ No 1425 at para 261 , when a trier of fact is faced with two sets of very qualified experts testifying regarding negligence, it is not acceptable to declare a tie and that the tie goes to the defendant doctor. It is the trial judge’s duty to weigh the experts’ opinions and to select the theories which are most consistent with the evidence and the requisite burden of proof. [ 99 ] As noted in Fournier , in assessing whether a doctor has met the standard of care, the court must guard against giving undo weight to the distressing result for the patient.

A doctor should not be judged in hindsight with regard to the loss or injury suffered. As Verville J. noted: 83 …[I]t is easy to be wise after the event, when the medical outcome of the patient’s condition is known. The Court must exercise caution in assessing the testimony of experts whose opinions are based on a retrospective assessment of medical issues, as a retrospective analysis of a medical situation is contrary to the way medicine is practiced. [ 100 ] I turn now to the expert evidence relating to the standard of care. 2. Evidence a. Dr. Jerome Dansereau [ 101 ] Dr.

Jerome Dansereau has been a specialist in maternal fetal medicine in Victoria, British Columbia since 1997. He was qualified to give opinion evidence in obstetrics, gynecology and maternal fetal medicine. He has additional training in epidemiology, having obtained his Master’s degree in healthcare and epidemiology in 1988. After completing his medical degree and a 4-year qualification in obstetrics and gynecology, he took 3 years of training as a sub-specialist, obtaining a diploma in maternal fetal medicine in 1989.

He has testified as an expert witness in British Columbia on 5 or 6 occasions, but not in Alberta. Currently, he has a referral practice, sometimes from primary care physicians, but largely from obstetricians and gynecologists or radiologists, of cases beyond their expertise. He teaches family practice residents and medical students, and has lectured widely and conducted several studies on genetic prenatal diagnosis.

He has participated in provincial advisory committees on standards of care and is currently Chair of the Perinatal and Obstetrical Quality Assurance Committee for the South Island, treating premature births and cervical incompetence, including the ultrasound assessment of women at risk of premature birth. [ 102 ] Dr. Dansereau testified that cervical incompetence and cervical insufficiency describe the same condition, namely, an intrinsic weakness of the cervix that can be acquired or is congenital, which leads to a progressive failure of the cervix to maintain the pregnancy.

The condition manifests itself in progressive changes in the cervix with eventual effacement, dilatation, and expulsion of the fetus either very prematurely such that the fetus is unviable, or very prematurely such that the infant can survive, but with health issues associated with premature birth. Effacement refers to the shortening of the cervix and dilatation to the opening of the cervix. [ 103 ] Dr.

Dansereau stated that cervical cerclage, which involves keeping the cervix closed by placing a suture around the cervix to prevent its premature dilatation, has been used for the last few decades, the Shirodkar suture being one of the two most common types of cervical cerclage. The internal os is located at the top of the cervix and the external os, at the bottom. Cervical cerclage is performed between the 2 ossa and can be placed electively, typically between 12 and 14 weeks gestation, or as an emergency procedure, usually around 20 weeks gestation.

He stated that emergency cerclage is performed either because of evidence of changes in the cervix and the opening of the cervix as observed by ultrasound, or clinically, because the cervix is dilated and the membranes can be observed. He defined rescue cerclage as a situation where cerclage is performed when the cervix is “wide open”. An

article co-authored by Dr. Dansereau, P Wong, J Dansereau et al “Emergency cervical cerclage: a retrospective review of 51 cases”, Am J Perinatol. 1993; 10(5):341-7 referred to the effectiveness of “cervical cerclage performed on an emergency basis, when the cervix has already started to dilate” (Exhibit 21 at 341). As indicated below, Dr. Muir adopted this definition of emergency cerclage, i.e. placed later in the gestation once the cervix has already started to open. Dr.

Chari also referred to 3 types of cerclage: prophylactic, urgent (in response to cervical length on ultrasound), and emergency (or rescue) cerclage. [ 104 ] I found Dr. Dansereau’s definition of “emergency cerclage” confusing, as he appeared to refer to it interchangeably at times with an ultrasound-indicated (urgent) cerclage.

For example, he testified that if an emergency cerclage had been performed on J.S. at 21 weeks (which would have been at the time of the October 2, 2000 ultrasound), it is more likely than not that K.S. would not have been born severely premature and would not have suffered the long-term consequences of severe prematurity.

However, the evidence clearly shows that the external os in J.S.’s case was closed at 21 weeks gestation. [ 105 ] A number of articles the Plaintiff relied on referred to 3 types of cerclage: elective (also referred to as prophylactic) performed in the 12 to 14 or 13 to 15 week range; urgent (also referred to as ultrasound-indicated) cerclage based on ultrasound findings of shortened cervical length and funnelling of fluid at the internal os; and emergency (also referred to as “physical examination-indicated cerclage”, “salvage” or “rescue”) cerclage (where the cervix is dilated and visible membranes are detectable on digital examination): see, for example, Exhibits 15, 18, 24, 25, 50.

In the December 2013 SOGC Guidelines , No 301, the term “emergency cerclage” is noted to be used interchangeably with the salvage or rescue cerclage and is noted to be typically placed “... in a woman whose cervix is already dilated” (at 1120). For the purposes of these reasons, I will refer to emergency cerclage in the manner defined by the 2013 SOGC Guidelines , so as not to confuse emergency cerclage with urgent (ultrasound indicated) cerclage. [ 106 ] Dr. Dansereau opined that the observations in J.S.’s July 24, 2000 ultrasound had no bearing on subsequent events. However, Dr.

Willox’s notation in the Family History

section of J.S.’s prenatal record under “Other (include obstetrical)”: “mother incompetent cx [cervix] Shirodkar suture” raised issues of a genetic predisposition for an incompetent cervix. Dr. Dansereau acknowledged that prior to a

2007 study authored by JE Warren, “Collagen 1A1 and transforming growth factor-b polymorphisms in women with cervical insufficiency”, Obstet Gynecol. 2007; 110(3):619-24, there were no studies targeting the impact of family history as a predictor of cervical incompetency. However, it is generally accepted in the medical profession that family history is a risk factor for almost any medical condition. It is a matter of standard practice to inquire about a family history of complicated pregnancies.

Putting more general questions to the patient about family history brings risk factors to the forefront, permitting the physician to explore them in more detail. Dr. Dansereau opined that the cervical insufficiency of J.S.’s mother, a genetic risk factor, was a strong predictor of cervical incompetence and increased J.S.’s risk of cervical insufficiency by more than 20 times. [ 107 ] Dr. Dansereau also acknowledged, however, that cervical incompetence is a rare condition.

The 2007 Warren study made the known risk associated with family history more specific and objective, as it provided examples of genetic mutations supporting the view that genetics are relevant to the diagnosis of incompetent cervix. [ 108 ] Dr.

Dansereau noted that the reference in the October 2, 2000 ultrasound report to the cervix being open “with fluid, which seems to bulge into it” meant that the internal os was opening, dilating and allowing the membranes containing the amniotic fluid and fetus, attached by the umbilical cord to the surface of the placenta, to slide down into the cervical canal toward the external os. However, there was no indication in the ultrasound report as to how much of the cervix was still closed. Dr. Dansereau referred to Dr.

Willox’s note of October 3, 2000 in the prenatal record that the cervix was “a fingertip, long, not effaced”. Dr. Dansereau interpreted this to mean that, in terms of dilatation, Dr. Willox was only able to put a fingertip through the external os. Dr. Dansereau noted, however, that typically, in first pregnancies, the cervix is very tightly closed and the fact that even a fingertip could penetrate suggested there may have been some changes. [ 109 ] Dr.

Dansereau stated that by using a speculum in a pelvic examination, the cervix could be visualized to make sure it is not wide open and the membranes of the amniotic sac are not visible at the external os. According to Dr. Dansereau, it would appear that a speculum was not used in Dr. Willox’s pelvic examination of J.S. on October 3, 2000. [ 110 ] Further, according to Dr.

Dansereau, the October 2, 2000 ultrasound, indicating as it did the opening of the internal os and bulging of the sac inside the cervical canal, is reflective of a condition that at the very least places the patient at very high risk for premature delivery. It also raised the possibility of a weak or incompetent cervix. This condition is not one with which family doctors are trained to address, and required a referral to a specialist. Premature babies are at extremely high risk, depending on their gestational age at birth, of not surviving or of surviving with long-term handicap. [ 111 ] Dr.

Dansereau opined that when presented with the October 2, 2000 ultrasound and the October 3, 2000 clinical examination results, the standard of care applicable to Dr. Willox required him to arrange for J.S. to be seen by a perinatologist or, at the very least, an obstetrician experienced with this type of presentation. He acknowledged, however, that consultation with an obstetrician may be limited to a review of the ultrasound. Most of the time, the standard of care would incl

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