KY v Bahler, 2023 ABKB 280

Court of King’s Bench of Alberta Citation: KY v Bahler, 2023 ABKB 280 Date: 20230508 Docket: 1103 14108 Registry: Edmonton Between: KY, KY as Litigation Representative for KZ, KY as Litigation Representative for KD, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Brad Bahler, Nico Marais, David Malfair, Ronald Keller, the Sylvan Family Health Centre Inc, Central Alberta Medical Imaging Services Ltd, and Alberta Health Services as Owner and Operator of Lacombe Health Care Centre Defendants _______________________________________________________ Reasons for Judgment of the Honourable Justice W.N.

Renke _______________________________________________________ [ 1 ] The Plaintiff KY is the mother of the Plaintiffs KZ and KD. KZ and KD are twins. The main issues are: • whether the Defendant physicians Dr. Brad Bahler, Dr. David Malfair, or Dr.

Ronald Keller failed to meet the standards of care governing medical services provided to KY and the twins during pregnancy; • whether, if any of the Defendant physicians violated the standard of care, the violation or violations caused the twins’ injuries; and • if any of the Defendant physicians were responsible for the Plaintiffs’ injuries, whether the Defendants are responsible in whole or in part for the damages claimed by the Plaintiffs. Some elements of damages were provisionally agreed by the parties. I deferred consideration of some other aspects of damages. [ 2 ] The claims against Dr.

Nico Marais and Alberta Health Services as owner and operator of the Lacombe Health Care Centre

were discontinued. [ 3 ] For the reasons that follow, my main determinations are, in

summary, as follows: Standard of Care 1. Dr. Bahler failed to meet the standard of care of a family physician whose practice was restricted to low-risk pregnancies by failing to refer KY to an obstetrician upon learning that KY was pregnant with monochorionic diamniotic twins. Dr. Bahler had started a referral letter in their last appointment in his clinic’s e-records system. The referral letter was not completed or sent. KY contacted Dr. Bahler’s office to check on the referral. Her contacts did not spur its completion. 2. Dr.

Malfair fully complied with the standard of care of a radiologist in determining that an ultrasound scan disclosed the presence of monochorionic diamniotic twins. Dr. Malfair’s report respecting the ultrasound scan met the standard of care and was promptly and properly sent to Dr. Bahler. 3. Dr. Keller fully complied with the standard of care of an emergency room physician on presentation of KY who complained of pain and advised that she was pregnant with twins. The events involving Dr. Keller occurred a few days before KY attended Red Deer Regional Hospital. Causation 4. I found that Dr.

Bahler was the cause-in-fact and legal cause of the twins’ injuries. KY presented in distress at Red Deer Regional Hospital. She had not had the benefit of the referral to an obstetrician. The twins were suffering from a severe stage of twin-to-twin transfusion syndrome (TTTS). Essentially, while in utero, blood flow was transfused or transferred from one twin to the other. Blood flow to one twin was excessive and to the other deficient. Despite best efforts, including transfer to Foothills Medical Centre in Calgary and transfer by air ambulance to Mt.

Sinai Hospital in Toronto, no surgical intervention to address the twins’ plight was feasible, the twins were born naturally and prematurely, and the twins suffered neurodevelopmental injuries. If Dr. Bahler had referred KY to an obstetrician when he should have done so, the twins’ injuries would have been less than the injuries they actually suffered. (

a) Either through ultrasound surveillance by the obstetrician or through KY’s raising of concerns with the obstetrician respecting her worsening condition or both, the twins’ emerging TTTS would have been detected at a sufficiently serious stage to warrant intervention and would have been detected earlier than it actually was. (

b) While the TTTS in this case was not chronic but evolved acutely, the condition still required the formation of a physical infrastructure and sufficient time – even if measured only in days – to progress to the severe stage manifest when KY presented at Red Deer Regional Hospital. (

c) Because of the nature of the progress of the TTTS, the twins would not have been injured by TTTS at the time of its detection. (

d) The surgical procedure used to address the TTTS would have been selective fetoscopic laser photocoagulation (SFLP). (

e) At the time the TTTS was detected, KY would have been eligible for SFLP. She would not have been in labour and an anterior placenta would not have precluded the procedure. (

f) The twins’ gestational age would not have precluded the procedure at Mt Sinai Hospital. (

g) The SFLP itself would not have harmed the twins and both would have likely survived the procedure. (

h) The SLFP would have corrected the circulatory imbalances caused by TTTS putting the twins at risk and would have reduced amniotic fluid pressure. TTTS would not thereafter have harmed the twins. (

i) KY’s pregnancy would have been prolonged. (

h) Because their period of gestation would have been prolonged, the injuries the twins suffered through being born prematurely would have diminished. Dr. Bahler knew or should have known that failure to refer KY to an obstetrician would have resulted in injuries of the type suffered by the twins. 5. The Plaintiffs did not establish that any omission by Dr. Keller (including any omission to conduct a non-stress test when KY attended the emergency room) was a cause-in-fact of the twins’ injuries. Damages 6.

While SFLP intervention would have prolonged KY’s pregnancy and the twins would have been born later than they were, they still would have been born premature. Because of the fragility of premature infants born at the gestational age when the twins would have been born, the twins remained at risk of neurodevelopmental injury. I therefore found that the Plaintiffs’ damages award must be subject to an overall negative contingency of 10%. 7. I did not award damages for loss of interdependent relationship for the twins as an element of pecuniary damages.

8. I did not deduct amounts from the Plaintiffs’ cost of future care awards for prospective government funding. 9. I found that both twins will require life-long care. 10. I made the costs of future care awards for the twins discussed in parts XIV-XVII below and itemized in

Schedule A. Generalization is difficult. The twins suffered profound injuries so the cumulative award will be substantial, even if more modest than the Plaintiffs claimed but less restricted than the Defendants urged. [ 4 ] I’ll begin with a brief account of twin-to-twin transfusion syndrome. I’ll then describe the unfolding of events. Following a review of negligence principles bearing on the standard of care, I will assess whether any of Dr. Bahler, Dr. Malfair, or Dr. Keller violated the standard of care. After reviewing causation principles, I will assess whether Dr. Bahler or Dr.

Keller caused the twins’ injuries through the failure to meet the standard of care. [ 5 ] I’ll then address the global negative contingency issue. [ 6 ] The damages assessment will begin with the identification of matters not at issue and deferred issues. I’ll then turn to whether the twins have claims for loss of independent relationship. The central outstanding damages issues concern cost of future care. I will address the principles and objectives for cost of future care assessments.

I will then assess the disputed elements of the costs of future care award. [ 7 ] Transcript references shall be by page and line numbers. I shall refer to the written arguments as follows: • Plaintiffs’ Trial Brief (PTB) • Plaintiffs’ Reply Brief (PRB) • Defendants’ Final Written Argument (DFWA). Table of Contents I. Twin to Twin Transfusion Syndrome . 17 A. Chorionic Sac and Amniotic Sac . 17 B. TTTS and Imbalanced Blood Flow .. 18 C. Consequences . 19 D. Detection . 20 E. Treatment 20 II. Background . 21 A. Comments on the Evidence . 21 1. Observation Witnesses . 21 2. Documentary Evidence . 22 3.

Invariable Practice . 23 4. Adverse Inference . 23 5. Experts . 25 B. KY and her Family . 25 C. Dr. Brad Bahler 26 D. KY and Dr. Brad Bahler 26 E. May 5, 2009: First Appointment with Dr. Bahler 26 F. June 1, 2009: Second Appointment with Dr. Bahler 27 G. July 14, 2009: Third Appointment with Dr. Bahler 28 1. Booking the Appointment 28 2. The Appointment 28

H. Dr. David Malfair 28 I. August 4, 2009: The Ultrasound and Dr. David Malfair 29 J. August 11, 2009: Fourth & Last Appointment with Dr. Bahler 30 1. The Appointment 30 2. The Letter 30 K. August 21-30, 2009: Follow-up . 31 1. August 21, 2009 . 31 2. August 25, 2009 . 31 3. August 28, 2009 . 32 4. August 29-30, 2009 . 32 5. Did KY Call Dr. Bahler’s Office? . 32 6. Did Clinic Staff Advise Dr. Bahler of KY’s Inquiries? . 32 L. August 31, 2009: Dr. Keller - Lacombe Health Care Centre . 33 1. Dr. Bahler’s Office . 33 2. Dr. Ronald Keller 33 3. Dr. Ronald Keller and the Lacombe Health Care Centre . 34 M.

September 2: No Follow-up Ultrasound, Call to Dr. Bahler’s Office . 37 1. No Follow-up Ultrasound . 37 2. KY called Dr. Bahler’s Office . 37 3. Dr. Bahler and the Referral 37 N. September 3, 2009: Red Deer Regional Hospital 38 1. KY at RDRH .. 38 2. Transfer from RDRH to FMC .. 39 3. Dr. Bahler and September 3 . 39 O. September 3, 2009: Foothills Medical Centre . 39 1. Assessment at FMC .. 39 2. SFLP and Dr. Ryan at Mount Sinai 41 3. Dr. Rabi, KY, and JJM ... 41 4. KY’s Recollection of FMC Assessment 42 5. Departure . 42 P. September 4, 2009: Mount Sinai Hospital, Toronto . 42 1. Birth of the Twins . 42 2.

Placental Pathology . 43 Q. After Delivery . 43 1. KZ .. 43 2. KD .. 44 R. Back to Alberta . 44 III. Negligence and the Standard of Care . 44

A. Non-Issues . 44 B. Negligence: Elements and Sequence . 45 C. The Duty of Care . 46 D. Aspects of the Standard of Care . 47 1. Overview - Physicians’ Standard of Care . 47 2. Negligence and Consequences . 47 3. Time and Place and the Standard of Care . 48 4. Setting the Standard of Care . 49 5. Culpable Deviation from the Standard of Care . 55 IV. The Defendant Physicians and the Standards of Care . 57 A. Dr. Bahler and the Standards of Care . 57 1. Standard of Care Witnesses . 57 2. Standard of Care . 61 3. Conduct Meeting the Standard of Care . 62 4. Error in Determining Gestational Age . 68 5.

Failure to Refer to an Obstetrician . 69 6. Conclusion . 84 B. Dr. Malfair and the Standards of Care . 84 1. Standard of Care Witnesses . 84 2. Standard of Care . 86 3. Unchallenged Elements of Dr. Malfair’s Imaging and

Interpretation . 86 4. Failure to Image . 86 5. Provision of Information to Dr. Bahler 91 6. The Action Against Dr. Malfair 96 C. Dr. Keller 96 1. Standard of Care Witnesses . 96 2. Standard of Care . 96 3. Differential Diagnosis: Ruling out the Worst 97 4. Did Dr. Keller’s order for an ultrasound meet the standard of care? . 113 5. Causation . 114 V. Negligence: Causation . 114 1. Cause-in-Fact 114 2. Foreseeability . 122 VI. Causation and the Plaintiffs’ Injuries . 123 A. Causation Witnesses . 124 1. Plaintiffs’ Witnesses . 124 2. Defendants’ Witnesses . 126 3. Dr. Chambers and Dr. Freeman . 127

B. The Twins’ Injuries . 130 1. PVL .. 130 2. Mechanism of Injury . 131 3. Consequences . 131 C. Cause-in-Fact Responsibility . 132 1. Was KY a candidate for SFLP? . 133 2. Would SFLP have resulted in an outcome for the twins better than their actual outcome? . 138 3. What risk factors were relevant to the twins’ risk of neurodevelopmental injury? . 152 4. What was the rate of progress of the TTTS? . 156 5. Were the twins’ injuries caused by TTTS or prematurity or both? . 165 6. Dr. Armstrong’s Theory of Timing . 173 7. What would have happened had Dr. Bahler met his standard of care? . 179 8.

What would have happened had Dr. Keller met his standard of care? . 193 D. Dr. Bahler’s Failure to Refer as Cause-in-Fact of the Twins’ Injuries . 194 1. Eligibility for SFLP . 194 2. SFLP and Death . 194 3. SFLP and Neurodevelopmental Injury . 194 4. SFLP and Prematurity . 194 5. The Mechanism of the Twins’ Injuries . 195 6. Conclusion . 195 E. Legal Cause . 195 1. Dr. Bahler 195 2. Dr. Bahler’s Staff . 196 3. Conclusion . 197 VII. Corporate Liability . 197 VIII. Causal Determinations bearing on the Quantum of Damages . 197 A. The Parties’ Positions . 197 1. The Defendants’ Position . 197 2.

The Plaintiffs’ Position . 197 B. Principles . 198 1. Findings of Fact as Legal “Certainties” . 198 2. Counter-Factual Findings as “Past” Facts . 198 3. “Crumbling Skull” . 199 4. Consistency of Certain Findings with Contingency Allowances . 200 5. Examples . 200 C. This Case . 202 1. Risk of Death . 202 2. TTTS . 203

3. Prematurity . 204 4. Conclusion . 205 IX. Damages – Matters at Issue and Matters not Requiring Decisions . 205 A. Agreed Heads of Damages . 206 1. Damages Not at Issue . 206 2. Disagreement respecting the Use and Implications of Agreed Damages . 206 3. Evolution of Agreements . 207 B. Deferred Issues . 207

Section 19.1 of the Judicature Act 207 2. Additional Deferred Issues connected with s. 19.1 . 207 X. Loss of Interdependent Relationship . 207 A. Authority . 208 B. Speculation . 208 1. Loss of an Amenity . 208 2. Pecuniary Loss . 209 C. Analogies . 213 1. Loss of Future Income . 213 2. Fatal Accident Claims . 213 3. Difficulty of Calculation . 213 D. Not Never but Not Now .. 214 XI. Cost of Future Care - Principles . 214 A. Principles . 214 1. Non-Pecuniary Damages and Pecuniary Damages . 215 2. Features of Costs of Future Care . 217 3. Proof of Costs of Future Care . 220 4.

Some Comments about Costs of Future Care . 226 B. Deductions Based on Parental Care History . 229 1. Likelihood of Accepting Care . 229 2. Speculation about Dissipation or Hoarding . 231 3. Likelihood of Retaining Third-Party Service Providers . 232 C. Deductions for Government Funding . 233 1. Actual Loss . 234 2. Past Double Recovery . 234 3. Future Expenses and Priorizing Public or Private Funding . 235 4. Krangle v Brisco . 237 5. Deductions or Contingencies respecting Provincial Programs . 244 6. Crown’s Right of Recovery Act 263 XII. The Twins’ Injuries . 265

A. Sources of Evidence . 265 1. Videos . 265 2. The Parents’ Testimony . 266 3. Experts Not Called as Witnesses . 267 4. Neuropsychology and Educational Psychology Witnesses . 267 5. Occupational Therapy Witnesses . 269 6. Ms. Janice Landy . 270 B. Approach to the Assessment of the Twins’ Injuries . 271 C. The Twins’ Brain Injuries . 272 1. PVL .. 272 2. MRIs . 272 3. Not Frontal Lobe Dysfunction . 272 4. ADHD – Not Merely Behavioural or Psychological 275 5. The Injuries . 275 D. KZ’s Level of Impairment 276 1. Cognitive Capacity . 276 2. Executive Function . 277 3. Physical and Motor Impairments . 279 4.

Degree of Impairment 282 E. KD’s Level of Impairment 284 1. Cognitive Capacity . 284 2. Executive Function . 286 3. Physical and Motor Impairments . 290 4. Degree of Impairment 295 XIII. Model for Cost of Future Care Awards . 299 A. Sources of Evidence . 300 1. Plaintiffs’ Evidence – Janice Landy . 300 2. Defendants’ Evidence – Kerry Wynn . 300 B. Agreed Elements of a Model of Care . 301 1. Multidisciplinary Care . 301 2. Coordination . 301 3. Areas of Activity . 301 4. Integration . 302 5. Interests of the Twins . 302 C. Elements of Cost of Future Care Awards – the Issues . 302 1. Barrier-Free Housing . 302 2.

Equipment and Ancillary Personnel Costs . 302 3. Educational Supports . 302

4. Therapeutic Supports . 303 D. Legal and Practical Constraints on the Model of Care . 303 1. Legal Constraints . 303 2. Reality . 304 E. The Plaintiffs’ Experts’ Model of Care . 309 1. Description . 309 2. Concerns . 310 XIV. Elements of Cost of Future Care Awards – Shared . 312 A. Respite Care to Age 18 . 312 1. Entitlement and Past Non-Use? . 312 2. Contingency? . 312 3. Deduction for Other Children? . 313 4. Deduction for On-Site Presence of Personnel? . 313 5. Deduction for Other Times Away by the Twins? . 313 6. Deduction for FSCD Funding? . 314 7. Funding only to Age 18? . 314 8. Quantification . 314 B.

Travel to Attend Medical Appointments to Age 18 . 314 1. Travel Costs . 314 2. Award . 315 XV. Elements of Cost of Future Care Award - KZ .. 315 A. Therapeutic and In-Home Supports to Age 18 . 315 1. Agreed Costs of Therapeutic Support 316 2. Providing Therapy . 316 3. Extra Care Required by KZ’s Disabilities . 318 4. Increasing Needs, Increasing Need for Assistance . 319 5. Hours in the Day and Fatigue . 319 6. Plaintiffs’ Experts’ Approach – Rehabilitative Assistant 319 7. Ms. Pilger’s Approach . 320 8. Award – Supports to Age 18 . 321 B.

Therapeutic and In-Home Supports Post-Age 18 . 325 1. 24-hour a Day Care . 325 2. Care Provided by a PCA .. 325 3. Cost and Hiring through an Agency . 325 4. Deductibility of Government Funding . 326 5. Agreed Therapeutic Supports . 326 6. RA Support 326 7. Parents and Time of Leaving Home . 327

8. Award . 327 C. Rehabilitation Case Management – KZ .. 327 1. The Problem and Solution . 327 2. Approach to Case Management Costs . 328 3. The Award . 328 D. Full-Time Educational Assistance to age 18 – KZ .. 328 1. Plaintiffs’ Experts’ Proposal 328 2. Assessment 331 E. Psychological Services . 337 1. Periodic Testing . 338 2. RA Assistance . 338 3. Psychological Consultations for Others . 338 4. Play Therapy . 339 5. Psychological Therapy . 339 6. Case Manager 341 7. Award . 341 F. Occupational Therapy and Equipment - KZ .. 341 1. Occupational Therapy Hours . 341 2. Equipment – No Dispute . 343 3.

Equipment - Disputed Items . 343 G. Physiotherapy and Equipment 345 1. Physiotherapy Services . 345 2. Equipment 345 3. Award . 345 H. Speech and Language Therapy . 346 1. Agreed Costs . 346 2. Award . 346 I. Bathing & Personal Care . 347 1. Disposable Gloves . 347 2. Disposable Wipes . 347 J. Activities of Daily Living . 347 1. Electric Bed . 347 2. Prescription Eyeglasses to age 18 . 347 3. Prescription Eyeglasses age 18 ongoing . 348 4. Supportive Shoes and Boots . 348 5. Toothbrush . 349 K. Pharmaceuticals . 349 1. Need for Pharmaceuticals . 349

2. Award . 349 L. “Health Maintenance, Community Integration, Inclusion” . 350 1. Customized Saddle . 350 2. Recreational Wheelchair 350 3. Adaptations to Family’s Mobile Trailer 351 M. Transportation . 351 1. Adapted Vehicle . 351 2. Portable Ramp . 352 N. Travel Expenses – Consultation with Medical Specialists After Age 18 . 353 1. Travel Costs . 353 2. Persons Accompanying KZ .. 353 3. Award . 353 O. Exterior Home Maintenance . 353 1. Doctrinal Justification for Exterior Home Maintenance Costs Award . 354 2. Commencement Date for Expenses . 355 3. Contingency . 355 4. Award . 355 XVI.

Elements of Cost of Future Care Award – KD .. 355 A. Therapeutic and In-Home Supports to Age 18 . 356 1. Extra Care Required by KD’s Physical Disabilities . 356 2. Rehabilitation Assistant 356 3. Award . 357 B. Therapeutic and In-Home Supports Post-Age 18 . 358 1. Cost of Therapeutic and In-Home Supports While Living at Home . 358 2. Award . 361 C. Rehabilitation Case Management 361 1. Approach . 361 2. Award . 362 D. Full-Time Educational Assistance to age 18 – KD .. 362 E. Psychological Services . 363 1. Periodic Testing . 363 2. Individual Therapy . 363 3. Psychological Consultations for Others . 365 4.

Coordination and Consultation . 365 5. Award . 365 F. Occupational Therapy – KD .. 366 1. Occupational Therapy Hours . 366 2. Equipment – No Dispute . 367

3. Equipment – Disputed Items . 367 G. Physiotherapy and Equipment 369 1. Physiotherapy . 369 2. Equipment 369 H. Speech and Language Therapy . 370 I. Activities of Daily Living . 370 1. Prescription Eyeglasses to age 18 . 370 2. Prescription Eyeglasses age 18 on . 370 3. Supportive Shoes & Boots . 370 4. Toothbrush . 370 J. Pharmaceuticals . 371 K. “Health Maintenance, Community Integration, Inclusion” . 371 1. Customized Saddle . 371 2. Recreational Wheelchair 371 L. Travel Expenses – Consultation with Medical Specialists . 371 M. Exterior Home Maintenance . 372 XVII.

Elements of Cost of Future Care Award – Barrier-Free Home or Homes . 372 A. Current Family Circumstances . 373 1. Current House . 373 2. Available Land . 373 B. Alternatives for Securing Appropriate Accommodations for KZ .. 373 1. Group Home or Other Institution . 373 2. Renovating the Current Home . 374 3. New Home on the Parents’ Land . 374 C. Costs for a Barrier-Free Home for KZ .. 374 1. Sources of Evidence . 374 2. General Features of the Home . 375 3. Additional Square Footage . 375 4. Cost per Square Foot 376 5. Agreed Costs for Additional Features . 377 6. Additional Features Not Approved . 378 7.

Disputed Cost Items . 380 8. Securitization of KZ’s Interest in the Home . 387 D. Future Need for a Barrier-Free Home for KZ .. 387 1. How long will KZ live with her parents? . 388 2. Possible Mechanisms for KZ’s Care . 388 3. Cost of a New Home . 389 4. Negative Contingency . 390

5. Award . 391 XVIII.

Summary of Damages Awarded . 391 XIX.

Summary of Outstanding Issues . 391

Schedule A .. 393 Re: VIII.C.4 – Global Discount 393 Re: XIV. Elements of Cost of Future Care Awards – Shared . 393 A. Respite Care to Age 18 . 393 B. Travel to Attend Medical Appointments to Age 18 . 393 Re: XV. Elements of Cost of Future Care Award - KZ .. 393 A. Therapeutic and In-Home Supports to Age 18 . 393 B. Therapeutic and In-Home Supports Post-Age 18 . 394 C. Rehabilitation Case Management – KZ .. 395 D. Psychological Services . 395 E. Occupational Therapy and Equipment - KZ .. 395 F. Physiotherapy and Equipment 396 G. Speech and Language Therapy . 397 H. Bathing & Personal Care . 397 I.

Activities of Daily Living . 397 J. Pharmaceuticals . 397 K. “Health Maintenance, Community Integration, Inclusion” . 398 L. Transportation . 398 M. Travel Expenses – Consultation with Medical Specialists After Age 18 . 398 N. Exterior Home Maintenance . 398 Re: XVI. Elements of Cost of Future Care Award – KD .. 398 A. Therapeutic and In-Home Supports to Age 18 . 398 B. Therapeutic and In-Home Supports Post-Age 18 . 399 C. Rehabilitation Case Management 399 D. Psychological Services . 400 E. Occupational Therapy – KD .. 400 F. Physiotherapy and Equipment 401 G. Speech and Language Therapy . 401 H.

Activities of Daily Living . 401 I. Pharmaceuticals . 401 J. Travel Expenses – Consultation with Medical Specialists . 401 K. Exterior Home Maintenance . 402 Re: XVII. Elements of Cost of Future Care Award – Barrier-Free Home or Homes . 402 A. Costs for a Barrier-Free Home for KZ .. 402 B. Future Barrier-Free Home for KZ .. 403

I. Twin to Twin Transfusion Syndrome [ 8 ] The twins were born premature, at 26 weeks 6 days gestation. [ 9 ] Dr. Beaumier testified that a premature birth is one that occurs at less than 37 weeks gestation: 3906.23-3907.16. [ 10 ] A critical feature of KY’s pregnancy was that the twins were beset by twin to twin transfusion syndrome (TTTS). The affliction of the twins by that condition was not in dispute.

There were disputes about (e.g.) the rate of progress of the TTTS, the signs and symptoms of its progress, its contribution to the twins’ injuries, and whether any surgical intervention would likely have prevented the twins’ injuries, in whole or in part. [ 11 ] Since TTTS is a relatively rare complication of twin pregnancies and since the litigation proceeded in the shadow of the twins’ TTTS, I’ll describe the condition. What follows is drawn primarily from the evidence of the Plaintiffs’ witness Dr. Richard Brown, supplemented by information provided by other experts.

In this overview, I have attempted to avoid aspects of the condition that were in contention. I will address the contentious aspects of the condition below, as the assessments unfold. A. Chorionic Sac and Amniotic Sac [ 12 ] Twin pregnancies may be either dizygotic, originating from two fertilized eggs, or monozygotic, originating from a single fertilized egg that splits: 660.5-7; ex 12 (Brown Report) at para 11; ex 85,

Schedule B (Beaumier Report), p. 1. [ 13 ] Each fetus is surrounded in pregnancy by an inner amniotic sac and an outer chorionic sac or chorion. The chorion develops from the outer ring of cells around the very young fetus. The placenta develops from that line of cells: 660.1-4, 406.10-24. [ 14 ] Dizygotic twins each have their own chorion, amniotic sac, and placenta.

Monozygotic twins may be dichorionic (each with its own chorionic sac) and diamniotic (each with its own amniotic sac), monochorionic (both within a single chorionic sac) and diamniotic, or monochorionic and monoamniotic (both within a single amniotic sac): 660.10-661.1. About a third of twins are monochorionic: 694.20-22, Beaumier Report p. 1. [ 15 ] KZ and KD were monochorionic diamniotic twins. [ 16 ] As to whether monochorionic diamniotic twins have one placenta or two, Dr. Brown testified that there’s “a bit of semantics.” In the majority of cases, there is a single placental mass.

Functionally, each twin has his or her own component: 661.17-24. In a small number of cases, the components are not fused: 662.2-3; Brown Report paras 12, 13. [ 17 ] Regardless, there are connections between each twin and the placenta. The placenta provides “[e]verything the fetus needs … [i]t’s the lifeline to the developing fetus:” 662.5-16. [ 18 ] Twin pregnancies generally are riskier than singleton pregnancies. Dr.

Beaumier commented that: Twin pregnancies present endogenous risks and can be related to either the space that they will have to share within the mother’s uterus, the relationship one foetus has with the other and finally the burden that a multiple pregnancy places on the maternal health and condition: Beaumier Report p. 1.

Even in the case of dichorionic pregnancies, “it is like having two pregnancies at the same time .... two foetuses use more space than one, increasing the risk for premature birth:” ibid. , 3792.6-13. [ 19 ] Monochorionic twin pregnancies carry much greater risks of complications and morbidities than dichorionic twin pregnancies: Brown Report para 14. One of these complications is TTTS. B. TTTS and Imbalanced Blood Flow [ 20 ] The key to the TTTS problem is that there are vascular connections between the twins. According to Dr.

Brown, “[a]ll monochorionic twins will have some degree of anastomosis” (connections between blood vessels): 778.6-7. The connections may be of different types – arteries to arteries, veins to veins, or arteries to veins. Connections of arteries to arteries or veins to veins function at similar pressure, so “they are usually net neutral.” If an artery is connected to a vein, there’s a pressure difference. Blood can be passed along those connections from one direction to the other: 669.1-13; see 417.1-8; Beaumier Report p. 1; 3795.1-15, 3856.2-23.

In ex 13, Senat et al. , “Endoscopic Laser Surgery versus Serial Amnioreduction for Severe Twin-to-Twin Transfusion Syndrome,” N Engl J Med 351;2 (2004) (Senat ex 13) at 137 we read that “The interdependency of two fetal circulations is unique to monochorionicity. This is also the main anatomical and functional support for the development of vascular disruptive cerebral lesions.” [ 21 ] In most monochorionic diamniotic twin cases, blood flow across connecting vessels is balanced. In about a third or 30% of monochorionic diamniotic twins, the passage of blood is unequal.

There is a “net loss of blood from one twin through these connections to its co-twin:” 669.14-23; ex 33 (Macnab Report) at para 48. This is TTTS. [ 22 ] In most TTTS cases, the consequences are minor. In about 30% of TTTS cases (or about 10-15% of all monochorionic twins) the imbalance of blood flow is severe: 669.24-25; 778.9-19: Brown Report para 14; Macnab Report para 49; 1251.6. [ 23 ] In a severe case, the twin that is losing blood (the donor) suffers from growth restriction and has diminished amniotic fluid

(oligohydramnios). Lack of blood causes the donor to retain fluid and to produce less urine. Dr. Brown explained that amniotic fluid is, at the relevant stage of fetal development, mostly fetal urine: 664.9-22. The loss of blood causes a reduction in growth velocity of the donor: 6781.19-22. The twin that receives too much blood (the recipient) has normal growth but excessive amniotic fluid (polyhydramnios).

Because of the increased blood volume, the recipient tries to “offload” fluid by increasing urine production: 670.1- 671.12. [ 24 ] The most frequently used “staging system” or categorization of the severity of TTTS was devised by Dr. Ruben Quintero. The “Quintero stage” system was in use in 2009 when the material events occurred and the classification is still used: 675.19-24. The stages are as follows: I. Polyhydramnios (excessive amniotic fluid) in the recipient, severe oligohydramnios (insufficient amniotic fluid) in donor. Urine visible within the donor’s bladder. II.

Polyhydramnios in the recipient, a “stuck donor” (virtually no amniotic fluid – the amniotic sac surrounds the recipient like “cling wrap”). Urine not visible within the donor’s bladder. III. Polyhydramnios and oligohydramnios as well as critically abnormal Dopplers, with or without urine visualized within the donor’s bladder (at least one of absent or reverse end diastolic flow in the umbilical artery, reverse flow in the ductus venosus or pulsatile umbilical venous flow). IV. Presence of ascites (fluid in abdomen) or frank hydrops (fluid collection in two or more cavities) in either donor or recipient.

V. demise of either fetus. [ 25 ] Dr. Brown explained that “hydrops” describes “an accumulation of fluid within body cavities within the fetus or in spaces within the fetus,” typically an accumulation of fluid within the skin: 674.19-24; (Beaumier) 3844.4-8. There can be fluid accumulations around the lungs (pleural effusions), around the heart and pericardial space (pericardial effusions), or within the abdomen (ascites). The fluid accumulations usually occur in the recipient: 675.8. [ 26 ] Dr. Brown also explained that “Doppler” ultrasounds image the pattern of blood flow in a circulatory system vessel.

The most commonly evaluated vessels are the umbilical vessels, the umbilical artery, the middle cerebral artery (within the brain), and the ductus venosus (a vein connecting the return of umbilical blood from the placenta back towards the heart): 696.22-697.4. Abnormalities in flow may indicate issues with placental circulation, particularly with regard to the umbilical Dopplers. Abnormalities in flow for the cerebral Dopplers may be indicative of brain sparing, associated with growth restriction.

The ductus venosus Doppler abnormalities reflect on cardiac dysfunction: 697.7-15, 25-698.3. [ 27 ] In answer to the question of whether TTTS progresses “step by step through the staging process,” whether, if a mother were monitored continuously, “you would see the progression,” Dr. Brown testified that: Yes, probably you would. Unfortunately, we can’t monitor people 24/7 all the time, so what we are looking at usually is snapshots in time. But most probably, given the pathology that is contributing to this, we would expect there to be a degree of progression through those stages.

Sometimes the amount of time spent in one stage may be relatively small: 676.8-20. [ 28 ] Dr. Brown confirmed that TTTS may follow a chronic slow path of evolution or more rarely can present and develop very acutely: Brown Report para 48. C. Consequences [ 29 ] Most Stage I cases (around 70%) remain stable or improve without intervention: 778.20-779.12: Brown Report para 20. [ 30 ] The prognosis for untreated severe TTTS (Stages III+) is very poor with survival rates typically being less than 30%: Brown Report para 21. In testimony, Dr.

Brown said that if TTTS is untreated there is a very high likelihood (around 90%) of loss both twins: 672.1-4. [ 31 ] Both twins may suffer cardiac failure, the donor because the heart must overwork due to the lack of blood and oxygen, the recipient because of cardiac overload due to fluid overload: 672.8-18. A consequence, because of lack of blood, excess blood, or swings in the supply of blood, may be neurological damage to both twins. In ex 36, E.

Quarello et al. , “Incidence, mechanisms, and patterns of fetal cerebral lesions in twin-to-twin transfusion syndrome,” J Matern Fetal Neonatal Med. 2007Aug;20(8):585-597 (Quarello ex 36) we read the following at 593: Hemodynamic instability exposes the two fetuses to the risk of developing vascular disruptive lesions, particularly in the brain. The pathophysiology can be two-fold: low-flow and high-flow lesions.

Both low-flow and high-flow injuries can result from chronic or acute situations and they can equally affect the donor and the recipient twin .... and at 594: Low-flow insults occurring before 28 weeks of gestation may alter the neuronal population and interrupt neuronal migration .... This will lead to the development of periventricular leukomalacia [and other injuries] which can extend into the lateral ventricles and into the cerebral parenchyma. [ 32 ] Dr. Brown commented that hydrops suffered by the recipient twin is a “significant abnormality that has a high risk of demise

associated with it:” 675.14-15. [33] If one twin dies, “there is a risk that the other twin will die as a consequence of that or suffer injury as a consequence of that:”672.19-23. [34] The risk of preterm birth is increased for twins generally and TTTS twins in particular (especially at Quintero II-IV). Therecipient’s increased amniotic fluid may over-extend the mother’s uterus and cause early delivery: 673.1-19; 837.1-5. Early delivery,before the twins have sufficient physical maturity, is “not always compatible with survival,” according to Dr. Brown. D. Detection [35] TTTS is detected by ultrasound. Dr.

Brown stated that in the majority of cases TTTS presents in the mid trimester, butevidence of its development may be manifest at the end of the first trimester, at about 20-22 or 23 weeks: Brown Report para 22. E. Treatment [36] If twins are at stage I, the typical treatment is observational only. Some cases remain at stage I (about a third). Others improve(about a third). Others deteriorate. Observation discloses the path followed. The observation is by “regular ultrasound:” 677.11-19;678.22-679.4. The timing of the ultrasound depends on the progression of the condition.

The timing could move from two weeks to oneweek to every day: 678.1-8. [37] For stages II, III, and IV, “[c]ertainly by 2009, it was very clear that the appropriate standard for treatment of [TTTS] waslaser procedure.” The mother would be referred to a centre that undertakes these procedures: 678.11-17. Another treatment available in2009 was serial amniodrainage or amniocentesis, repeated as often as necessary: 679.25-680.18. [38] I will return below to treatment options, particularly the laser procedure or “selective fetoscopic laser photocoagulation”(SFLP), and the risks associated with treatment. II.

Background A. Comments on the Evidence [39] I offer here some general observations relating to the evidence and to some evidential issues running through the trial. 1. Observation Witnesses [40] The main observation witness was KY. The Defendant physicians, as might be expected, had no or little recollection of theevents. On the physician side, the evidence relating to the unfolding events was chiefly documentary.

Insofar as the Defendantphysicians relied on their memories, the comments that follow apply to them as well as to KY. [41] Credibility assessment concerns two sets of factors – on the one hand, a witness’s sincerity or commitment to tell the truth; onthe other, the witness’s reliability or accuracy. The strength of belief that an account is true is not necessarily correlated with theaccuracy of that account. A witness’s certainty does not entail an account’s accuracy.

According to Justice Doherty in R v Morrissey,, 97 CCC (3d) 193 (ON CA) at 205: When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of awitness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannotgive reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Justice Doherty indicated that the assessment of a witness’s reliability involves considering “the witness’s ability to accurately observe,recall and recount the events in issue.” [42] I did not doubt KY’s sincerity, her effort to testify in accordance with her oath. [43] As for KY’s reliability, on the one hand, she was throughout an anxious and focused mother, who would have good reason tohave paid attention to the events that unfolded and to have remembered those events. [44] On the other hand, the events at issue took place over a decade before KY testified.

Those events were punctuated by thehighly traumatic incidents of September 3 and 4, 2009. KY has been in the litigation process since 2012. [45] The passage of time and the re-thinking and re-visiting of the memories over the years supports the risk of confusion betweenwhat occurred on one date and what occurred on another and supports the risk of memory being reshaped by a narrative of “what musthave happened.” Memories, even clear and distinct memories, do not always match what actually occurred. [46] Further, memory usually does not improve over time (see R v Garford, 2021 ABCA 338 at para 19).

Witnesses often claim attrial that their memory is better than at some earlier time, for example at the time of Questioning or a Preliminary Inquiry. Nonetheless,prior sworn inconsistent testimony typically undermines the reliability of differing trial testimony. The effect of the inconsistency on theprobative value of trial testimony as a whole, as opposed to the testimony on the particular point, will vary depending on the nature andsignificance of the inconsistency.

One of Wigmore’s insights was that credibility is “an entire thing, not a separable one:” Vetrovec v theQueen, (SCC), [1982] 1 SCR 811, Dickson J, as he then was, at 826. Corroboration of part of a witness’s narrative may

support the likelihood of the narrative as a whole. But equally, unreliability of part of a witness’s narrative may undermine the likelihoodof the narrative as a whole. And that said, a finding of unreliability may be judged to go only to a part of testimony but not the whole. [47] I bear in mind that I may accept all, none, or some of the evidence of any witness: R v JHS, 2008 SCC 30 at para 10. 2. Documentary Evidence (

a) Admissibility and Probative Value of Documentary Evidence [48] I acknowledge that records created by medical personnel with personal knowledge of the events recorded, contemporaneouslywith the events recorded, and for medical purposes, have circumstantial guarantees of reliability and are inherently reliable, although theprobative value of the records is ultimately to be determined at the end of the case in light of all of the evidence: Ares v Venner at 617,626. [49] As a general rule, documentary memorializations of events have greater weight than recounted memories of events. [50] The courts have long preferred contemporaneous documentary records to memory.

See, e.g., the decision of Lord JusticeMales in Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors, [2019] EWCA Civ 1413 at para 48 (BaiLII): 48. In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only ofwhat was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between theparties, but with even greater force to a party’s internal documents including emails and instant messaging.

Those tend to be thedocuments where a witness’s guard is down and their true thoughts are plain to see .... Although this cannot be regarded as a rule of law,those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while givingevidence.

The classic statement of Robert Goff LJ in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at p. 57 is frequently, indeed routinely,cited: Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always totest their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documentsin the case, and also to pay particular regard to their motives and to the overall probabilities.

It is frequently very difficult to tell whethera witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to theobjective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge inascertaining the truth .... [51] For professionals whose services turn on the accuracy of historical observations, including communications received oroverheard, the keeping of contemporaneous accurate and unaltered notes is a duty.

Hence police officers’ obligation to keep notes oraccurate contemporaneous records (Wood v Schaeffer, 2013 SCC 71, Moldaver J at paras 66, 67; R v Mascoe, 2017 ONSC 4208, Hill Jat paras 112 – 115) and the duty of medical personnel to keep accurate contemporaneous records (Medina v Wong, 2018 BCSC 292,Abrioux J, as he then was, at para 105). (

b) Agreed Exhibits [52] The parties entered a set of Agreed Exhibits. The parties agreed that, inter alia, the records were authentic and, subject tospecified terms, statements of fact in the records were admissible for the truth of their contents. Clause 2(

e) provided that: Where a record contains a statement of fact based on information provided by a person other than the person who made the record, thestatement is evidence that the information was provided by the other person but is not evidence of the truth of the information unless thestatement is admissible for the truth of the information under the laws of evidence.

Clause 3 provided that: … where a record contains a statement of opinion, the statement is entered as evidence as if the author had given that evidence underoath at trial and … was qualified to give such evidence …. “[S]tatement of opinion” includes a. diagnosis of medical condition; b. opinions as to cause of medical conditions; and c. inferences drawn from observations made by the author of the statement of record. I have considered only those records in the Agreed Exhibits referred to by counsel during trial. References to the agreed Exhibits will bedesignated by the abbreviation AE. 3.

Invariable Practice [53] From evidence of invariable practice, conduct in accordance with that practice at a material time may but not must be inferred.Invariable practice is a type of circumstantial evidence. See R v Watson, (ON CA), 1996 CarswellOnt 2884, 108CCC (3d) 310 (ON CA), Doherty JA at para 36 (CarswellOnt). Whether the inference of conduct in accordance with practice should beinferred depends on all the evidence. Factors bearing on the drawing of this type of inference have been refined in the medical negligencecontext. I will refer to those refinements below. 4. Adverse Inference

[ 54 ] At various points, one side urged that an “adverse inference” be drawn against the other because of a failure to call a witness. [ 55 ] In Day v Woodburn , 2019 ABQB 356 at para 287 , I set out the test for drawing an adverse inference as follows: [287] An adverse inference may be drawn against a party when, in the absence of an explanation, the party (among other things) fails to call a witness whose testimony would have had significant probative value on an important fact or facts-in-issue. Drawing an adverse inference is a discretionary decision. In exercising that discretion, a trial judge should consider whether (

a) there is a legitimate explanation for the failure to call the witness; (

b) the witness has material evidence to provide; (

c) the witness is the only person or the best person who can provide the evidence; and (

d) the witness is within the exclusive control of the party against whom the inference is sought, and is not equally available to both parties. See Horizon Resource Management Ltd v Blaze Energy Ltd , 2011 ABQB 658 , Brooker J, revd o.g., 2013 ABCA 139 at para 146 ; Spartan Developments Ltd v 206559 Developments Ltd , 2004 ABCA 12 ), 346 AR 124, Paperny JA at para 9; Dabrowski v Robertson , 2007 ABQB 522 , Veit J at paras 64-66; Howard v Sandau , 2008 ABQB 34 , Wittmann ACJ, as he then was, at para 44; Syncrude Canada Ltd v Saunders , 2015 ABQB 237 , Mahoney J at para 66; Sidney N. Lederman, Alan W.

Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed , at §6.450. Justice Germain commented in Border City RV Centre v Vanguard Inc , 2016 ABQB 31 at para 207 : [207] …. An adverse witness inference must flow from a witness that would normally be expected to give evidence but simply for an unexplained reason does not give evidence or presents incomplete evidence. A common situation is a medical litigant who does not produce his medical records, or call treating health care providers, which are exclusively in the litigant’s possession or ability.

An ability to produce and the failure to do so, absent a good explanation, may lead to an adverse inference. See also Stikeman Elliott LLP v 2083878 Alberta Ltd , 2019 ABCA 274 at para 87 ; Lupuliak v Condominium Plan No 8211689 , 2022 ABQB 65 , Feasby J at paras 49 and 51 (“An adverse inference must be reasonable; it is not a licence to write fiction.

An adverse inference should only be drawn when it is a reasonable inference to draw in light of the totality of the evidence before the Court”). [ 56 ] An adverse inference may be avoided if a party serves a notice under rule 8.15: 8.15(1) When an adverse inference might be drawn from the failure of a party to call a person as a witness, that party may serve on every other party a notice of the names of those persons that the party does not intend to call as witnesses.

(2) The notice must be served one month or more before the date the trial is scheduled to start.

(3) The party on whom the notice is served may serve on the party who served the notice, within 10 days after service of the notice, a statement setting out any objection to the intention not to call a person as a witness.

(4) If the party on whom the notice is served does not respond to the notice of intention not to call a person as a witness, the failure to call that person as a witness is not to be considered to be adverse to the case of the party who served the notice.

(5) When a party objects to the notice of intention not to call a person, the cost of calling that person as a witness must be paid by the party who objects, regardless of the result of the claim, issue or question, unless the Court decides that the objection is reasonable. [emphasis added] 5. Experts [ 57 ] I will address the qualifications and qualification of the various experts as the analysis proceeds. The Defendants submitted the following at DFWA para 152: 152.

The background and clinical experience of the defence experts provides them with a firm foundation to comment on the question of the standard of care and causation in this case. They have a greater degree of familiarity with the practice areas in question, have significantly more experience practicing in Alberta and [with] the expected level of knowledge and expertise of a physician in the position of the Defendants. They are all still in active practice and not testifying from the wisdom of retirement. The barb of this last sentence of this submission did not strike Dr.

Brown. [ 58 ] At this point I will simply confirm that it is my task as trier of fact to decide the liability issues based on all the evidence in the case relevant to liability, and to decide the damages issues on all the evidence relevant to those issues. My responsibility is not and cannot be delegated to witnesses, expert or not.

The weight of a particular witness’s evidence and whether I accept, accept in part, or wholly reject the opinion of a witness cannot be decided a priori . [ 59 ] The perspective I must bring to bear on the evidence, on the facts that I find and the expert opinions offered, must be informed by the law, a discipline in which none of the experts were trained. B. KY and her Family [ 60 ] KY and her husband JJM have six children, JDA, the twins KZ and KD, HVK, HL, and a son born during trial. They are a

family of eight. [ 61 ] JDA was born in 2007 at 36 weeks gestation. She was preterm: 78.16, 79.11, 221.16-17. She weighed 6lbs 4 oz. KY had a kidney infection when pregnant with JDA: 221.5-7, 221.8-10. See AE 40 (Alberta Prenatal Record). [ 62 ] Before having JDA, KY had two miscarriages: 78.15, 79.1-4. After JDA was born and before KZ and KD were conceived, KY had a miscarriage. This occurred in December 2008.

KY had a D&C after this. [ 63 ] KY had no difficulties with her pregnancies for HVK, HL, or her last child: 80.16-81.1. [ 64 ] None of the children besides KZ and KD have psychological difficulties such as ADHD. [ 65 ] KY has not had fertility treatments. There was no history of twins in KY’s or JJM’s families: 221.21-222.2. C. Dr. Brad Bahler [ 66 ] Dr. Bahler received his MD from the UofA in 2002. He completed a residency in Rural Alberta North between 2002 and 2004. He holds a Certification in Family Practice. [ 67 ] He has been employed as a family physician at Sylvan Family Health Centre since 2004.

Since 2005, he has been a clinical lecturer with the UofA Faculty of Medicine and since 2004 he has been a preceptor in the Rural Alberta North Residency Program. [ 68 ] In the years leading up to 2009, he delivered between 50-100 babies per year. [ 69 ] He followed low risk pregnancies only. This did not include twin pregnancies. By 2009, he had diagnosed only a very small number of twin pregnancies, around five. He did not recall having encountered a monochorionic twin pregnancy. [ 70 ] In 2009, Dr.

Bahler’s knowledge about the management of monochorionic twin pregnancies was limited to the fact that these pregnancies were high risk and required care by an obstetrician: 2966.18-24. D. KY and Dr. Brad Bahler [ 71 ] KY learned that she was pregnant in March 2009 before moving to Sylvan Lake. She had a pregnancy test done at a clinic in Medicine Hat: 229.9-10. Upon moving to Sylvan Lake she needed a family physician. Dr. Bahler was taking new patients. [ 72 ] KY had four appointments with Dr. Bahler. [ 73 ] Dr.

Bahler has little personal recollection of his interactions with KY, save for events around September 3, 2009: 2967.12-22. E. May 5, 2009: First Appointment with Dr. Bahler [ 74 ] KY had her first appointment with Dr. Bahler on May 5, 2009. She characterized this as a “meet and greet” appointment: 81.22; 2969.4-5. She told Dr. Bahler she was eight weeks pregnant. [ 75 ] KY had noted that the first day of her last menstrual period was February 26, 2009. She had kept track of this date on an app and was confident of the date: 227.10-228.5, 228.24-229.1; 2965.8-26. [ 76 ] She advised Dr.

Bahler of her history, including her two previous miscarriages and JDA having been born premature: 82.3, 229.10-11, 230.7-9, 233.4-8. [ 77 ] The Alberta Prenatal Record (AE 41) indicated “Yes” respecting “Sure of Dates” and at the entry for Cycle, “regular” was noted: 2972.10-13. [ 78 ] Dr. Bahler calculated the gestational age as 8 weeks: AE 4. [ 79 ] Dr. Bahler calculated KY’s expected date of confinement (“EDC”) or her due date. This was December 5, 2009: 229.14-18, 2965.13. Dr.

Bahler did this calculation with a pregnancy wheel (two circular pieces of cardboard joined at the centre by a brad, showing the delivery date by pointing to the last menstrual period date): 2972.1-23, 3014.9-13. [ 80 ] KY initially denied that Dr. Bahler “spent enough time” with her at this appointment but when reminded of her evidence at Questioning confirmed in cross-examination that he did spend enough time with her: 225.16-19, 227.1-9. [ 81 ] KY talked about preterm delivery with Dr. Bahler. He told her that you have to “let nature take its course:” 236.11-14. [ 82 ] KY did not recall having been told by Dr.

Bahler or his staff that same day appointments were available if she had any concerns about her pregnancy between scheduled appointments: 231.14-23. KY did confirm that she understood that “you can go back if you have concerns:” 245.22-25. [ 83 ] Dr. Bahler testified that office practice was to reserve timeslots for prenatal patients, so any prenatal patient could be seen on the same day that concerns were raised: 2965.13-18. I find that this was communicated to KY. [ 84 ] Dr. Bahler advised KY to return at 12 weeks gestation.

[ 85 ] Dr. Bahler considered her pregnancy to be normal: Sylvan Family Health Centre, Patient Encounter History (PEH), AE 4. F. June 1, 2009: Second Appointment with Dr. Bahler [ 86 ] KY saw Dr. Bahler on June 1, 2009. This was their second appointment. KY was at about 13 weeks 4 days gestation. The Alberta Prenatal Record (at 41) indicated that a “Full Prenatal” was performed. The fetal heart rate was 150 bpm. KY did not recall whether Dr. Bahler did a physical examination at either this or the May 5 appointment: 85.5-10, 234.19-21.

She did recall him doing measurements, but she couldn’t recall “that exact appointment:” 237.6-25. [ 87 ] Dr. Bahler testified that, typically, he would have talked about routine testing including genetics testing or screening: 2977.18- 22, 2978.5-8, 2979.3-6, 3017.1-3. [ 88 ] KY did not recall discussing genetic screening or an early ultrasound with Dr. Bahler: 82.15-22. In answer to the question “Were you offered an opportunity for an ultrasound before the August 4 th ultrasound?”, KY testified “I don’t believe so.” She said that “I would have taken it. I love getting ultrasounds done:” 216.22-217.2.

She did not think she would have turned these options down because she’d done screening and early ultrasound with her other pregnancies: 82.18-22. However, the Alberta Prenatal Record indicates that “Prenatal Genetic Screening” was “declined:” AE 41, 234.22-235.10, see 539.12-15. I find that the record is accurate. No documentary evidence confirmed discussion of an ultrasound at this meeting. I find that ultrasounds were not discussed at this meeting. [ 89 ] Dr.

Bahler asked KY to return in one month for a follow-up examination and for scheduling of her routine prenatal ultrasound: 238.9-11; 2977:18-22, 2978.3-6; 2977.14-17; 2981.5-9. [ 90 ] When asked whether Dr. Bahler discussed the warning signs of preterm labour with her, KY stated that she did not recall: 84.21, 236.15-20. She was aware of signs of preterm labour. She had “a book that [she] was reading that had a lot of that information in it:” 84.21-23, 236.20-237.5. [ 91 ] Dr. Bahler’s testimony was that his practice was to provide patient education about pre-term labour at the 12-week visit.

He tells patients to be aware of abdominal cramping and pain, and vaginal bleeding or discharge. Any of these may be signs of pre-term labour and would require an immediate assessment: 2977.18-2979.18. [ 92 ] I find that Dr. Bahler provided this information to KY (she did not deny that he did, she simply couldn’t remember). Further, there was no suggestion in evidence or argument that Dr. Bahler should have documented having given this information.

The absence of documentation did not undermine the drawing of this inference. [ 93 ] In any event, KY was aware of the signs and symptoms of prematurity and knew that at first sign of these symptoms she was to seek medical attention. G. July 14, 2009: Third Appointment with Dr. Bahler 1. Booking the Appointment [ 94 ] KY did not have her third appointment within one month of June 1, 2009. She had booked the four-week follow-up appointment on June 1. When she got home, she realized that she was not available that day. She called back to re-book the next day.

July 14 th was the first available time: 86.20-88.2, 217.14-218.6, 238.12-240.3. That was the “soonest appointment that they could get me in for” that lined up with days that KY did not work: 241.2-11. [ 95 ] The Defence asserted that KY’s calendar provided evidence that she was not working on June 29, June 30, or July 3. She could have had appointments on any of these days. However, there was no evidence that appointments with Dr. Bahler were available on these dates or that those dates were offered to KY and she rejected them.

KY’s account stands uncontradicted. [ 96 ] KY commented that the office staff was rude. They were “short with me.” They were “difficult” and “not willing to make things work:” 88.7-14. 2. The Appointment [ 97 ] KY and Dr. Bahler had their third appointment on July 14, 2009. She was at about 19 ½ weeks gestation. Her uterus was normal for dates (the fundal height was 20 cm), the fetal heart rate was normal (155 bpm), and her blood pressure was normal.

KY was “doing well.” This was a “normal pregnancy.” KY was advised to return for follow-up in one month or earlier if she had concerns: PEH at 5; 2981.22-2982.2. [ 98 ] Dr. Bahler ordered an ultrasound examination for KY. [ 99 ] KY asked Dr. Bahler’s staff to book the ultrasound for between July 31 and August 4 so her husband could be there. The ultrasound was booked for August 4, 2009: 246.5-16; 2983.18-2984.2. [ 100 ] The

interpretation of the ultrasound scan and the report would be done by Dr. David Malfair. H. Dr. David Malfair [ 101 ] Dr. Malfair graduated from the UofA Faculty of Medicine in 2000. He completed his radiology residency in 2005 at UBC Medicine. In his in-training radiology examinations, he ranked in the top 1 or 2 percent of residents. He followed his residency with two

years of fellowships in San Francisco, one year in musculoskeletal imagining, one year in neuroradiology. Dr. Malfair worked for two years at Vancouver General Hospital. He moved to Red Deer in 2009 to work with Central Alberta Medical Imaging Services (CAMIS). [ 102 ] During his residency he spent about seven months in ultrasound and a third to half of that time was in obstetrical ultrasound. While completing his fellowships, he did locums in Sudbury, Ontario, where his wife was from, about two weeks per year. He read obstetrical ultrasounds there.

While at Vancouver General, once a month he would review ultrasounds. [ 103 ] Dr. Malfair estimated that he had diagnosed monochorionic twins on ultrasound about 5-10 times: 3116.11-13. [ 104 ] He knew how to assess TTTS. He would be looking for size discrepancy of at least 25 percent and for significant fluid difference between the two amniotic sacs and whether one fetus had more edema or was more swollen: 3118.1-20. [ 105 ] Dr. Malfair had been practicing at CAMIS for about a month before he reviewed KY’s ultrasound: 3136.20-24. [ 106 ] Dr.

Malfair did not have a recollection of reviewing the ultrasound on KY on August 4, 2009. I. August 4, 2009: The Ultrasound and Dr. David Malfair [ 107 ] The ultrasound was performed on August 4, 2009 at CAMIS. [ 108 ] The sonographer was “HV,” described by Dr. Malfair as “a very good sonographer:” AE 50-51; 3119.3-15. The sonographer did the ultrasound. The images were reviewed and interpreted by Dr. Malfair. [ 109 ] KY was at about 22 weeks gestation.

This was a “complete gestation ultrasound.” [ 110 ] According to the ultrasound report (AE 1 at 50-51), the fetal anatomy elements were all “seen.” These included head, lips, nose, orbits, spine, “4-ch. heart,” stomach, kidneys, bladder, cord insertion, 3-vessel cord, arms, hands, legs, and feet. [ 111 ] Dr. Malfair’s impressions (p. 51) were as follows: Twin gestations are seen which are monochorionic and diamniotic. The twins have a similar size and measure 22 weeks by exam bilaterally. The amniotic fluid is normal bilaterally. There is no evidence of placenta previa. Fetal anatomy is well seen bilaterally.

Baby A is inferior and the fetal anatomy is completely unremarkable. Baby B is fundal. The fetal anatomy is largely unremarkable with the exception of an echogenic foci in the left ventricle. According to the SOGC clinical practice guidelines, this would require further work up in a mother over 31 years old.

If there are no other risks for aneuploidy in this 23 year old patient, no further work up is required by guidelines [ 112 ] In addition, the twins had similar abdominal circumferences (twin A: 171mm, twin B: 173 mm), head circumferences (twin A: 203 mm, twin B: 199 mm), and femur lengths (twin A: 39 mm, twin B: 38 mm), similar heart rates (twin A: 141 bpm, twin B: 148 bpm), and similar weights (twin A: 491 gg, twin B: 483 gg). [ 113 ] Dr. Malfair commented in testimony that the “similar size” and “amniotic fluid” comments went to whether the twins displayed TTTS.

They did not: 3119.23-3120.16. [ 114 ] KY stated that she did not discuss the ultrasound findings with Dr. Malfair: 89.23 (“I did not have a conversation with the radiologist”). She confirmed this in cross-examination: 246.22-247.1. She was made aware that she had twins. She was told she needed to talk to her family doctor: 90.3-6. [ 115 ] Dr. Malfair did not have a present recollection of his conversation with KY. In Questioning, his recollection was that he congratulated her, told her it was a monochorionic pregnancy with a slight risk of complications, and she needed to see a specialist.

He also told her that there was a “soft marker.” He did not recall her reaction. He had converted the “monochorionic” terminology into lay terms. He did not tell her what the increased risks were. Dr. Malfair confirmed that his answers at Questioning were true: 3139.10- 3141.21. [ 116 ] Dr. Malfair did not telephone Dr. Bahler: 3143.12-14. [ 117 ] Dr. Malfair’s report was sent to Dr. Bahler. The report was received by Dr. Bahler’s office on August 5, 2009 at 11:35 p.m.: AE 1 50-51. [ 118 ] This was Dr. Malfair’s only involvement with KY’s care. J. August 11, 2009: Fourth & Last Appointment with Dr.

Bahler [ 119 ] Dr. Bahler reviewed Dr. Malfair’s report. There were no concerns with the pregnancy except that it was a twin pregnancy. Dr. Bahler therefore needed to review that with KY and to refer her for obstetrical care: 2986.21-24. 1. The Appointment [ 120 ] KY saw Dr. Bahler on August 11, 2009, their fourth and last appointment. KY was at 23 weeks gestation. KY’s fundus was at 24 cm. The fetal heart rate was 150 bpm: Alberta Prenatal Record at 41. [ 121 ] KY’s weight, urine sample, and blood pressure were all normal. She was at normal size for gestational age. The fetal heart rate was normal.

KY reported feeling fetal movement. No concerns emerged from this visit: AE 5, 41; 2987.20-25.

[ 122 ] Dr. Bahler reviewed the ultrasound with KY. He told her she was pregnant with twins. Dr. Bahler told KY that he did not manage twin pregnancies and he would refer her to an obstetrician for prenatal care: 90.9-10, 250.1-8. [ 123 ] On August 11, 2009, KY did not feel differently than she had felt with her previous pregnancy (JDA) and didn’t feel like she was growing bigger than she had in her previous pregnancy: 250.9-17. [ 124 ] She had questions about twin pregnancies but Dr. Bahler told her that her questions would be answered by the obstetrician she’d be referred to: 250.18-251.2.

In Questioning, KY stated that she might have asked Dr. Bahler a “couple” of questions, but she had thought it better to talk to a specialist: 251.3-252.1. [ 125 ] Dr.

Bahler advised KY to contact his office if she did not receive confirmation of an appointment with an obstetrician within two weeks or if she experienced any other problems before seeing the obstetrician: 90.23-24, 253.23-7. 91.6-25, 92.9-14, 253.23-254.7; 2988.22-25. [ 126 ] In cross-examination, KY said that she did not recall whether she knew there was an increased risk of pre-term labour by August 11, 2009, although in her questioning she agreed she knew there was a risk of pre-term labour by August 11, 2009: 254.8-255.22. 2. The Letter [ 127 ] On August 11, 2009, Dr.

Bahler began to draft the referral letter to an obstetrician in his clinic’s e-records system: AE 8. His testimony was that “it was initially created electronically on [August 11, 2009]. But I believe at that time only the demographic information was filled out:” 2989.18-21. [ 128 ] Dr. Bahler’s testimony was that the draft referral letter was to have been sent to his task box in the electronic medical record system for completion later in the day. [ 129 ] The draft letter was not completed on August 11, 2009. It was not sent to the addressee obstetrician, Dr. Nico Marais. [ 130 ] Dr.

Bahler testified that the letter was completed when he was made aware that the referral had not occurred, on September 1 or 2, 2009: 2989.22-25. [ 131 ] Dr. Bahler was asked the following in chief: “... to the best of your knowledge, what happened to this referral letter at the end of the August 11 th appointment?” Dr. Bahler replied: I do not know. All I know is it did not appear in my electronic to-do box and so it sat unfinished until I was made aware that the referral wasn’t done September 1 st or 2 nd .

He was asked “Were you able to determine why the letter didn’t go into your task box?” He replied: “I was not:” 2990.15-24. [ 132 ] Dr. Bahler testified that “there were times on occasion where the EMR wouldn’t store a file or a document as expected .... unfortunately this did happen occasionally .... very occasionally, there would be a problem with storage of information in the EMR:” 2994.1-11. K. August 21-30, 2009: Follow-up [ 133 ] No appointments or hospital visits occurred in this period. KY provided the evidence about what occurred. JJM was working out of town during this period. 1.

August 21, 2009 [ 134 ] KY called Dr. Bahler’s office before two weeks from the previous appointment had passed. She was told by the office staff that “it had not been two weeks yet” and that the referral was “on a to-do list.” She believed that she had called on August 21: 91.6-25. [ 135 ] An issue is how the receptionist knew that the referral was “on a to-do list.” The evidence did not support the inference that when dealing with calls, receptionists would pull up patients’ electronic medical records, including any physician to-do lists.

In anticipation of a factual issue I’ll discuss in the negligence assessment, I find that what likely occurred is that KY called Dr. Bahler’s office and told the receptionist what Dr. Bahler had told her, particularly that she should expect an obstetrician appointment within 2 weeks. The natural assumption and the natural response of the receptionist to KY would have been that the referral was in progress. That is, KY was recalling the gist of the conversation, but not precise words of the receptionist. 2. August 25, 2009 [ 136 ] KY called Dr. Bahler’s office again on August 25.

She hadn’t heard anything about her obstetrician’s appointment. Again, Dr. Bahler’s receptionist said the referral was on Dr. Bahler’s “to-do list:” 92.15-93.9, 258.1-4, 259.20-23. My comments respecting the preceding call apply to this call as well. [ 137 ] Dr.

Bahler testified that he did not receive any notice from his staff that the referral had not yet gone out: 2991.4-7. [ 138 ] An issue that arises at this juncture is whether, by August 25, KY was “experiencing discomfort,” whether she “felt uncomfortable,” different than in her pregnancy with JDA, whether she felt “quite a bit bigger” by August 25: 92.10-14; 258.9-17. In cross-examination, KY suggested that she felt bigger by this time. However, in Questioning she had deposed that on August 25 she did not feel like she was “quite a bit bigger” than on August 11: 257.24-259.19.

Given the inconsistency between her trial testimony and

Questioning evidence and the lack of evidence that might corroborate increased size at this time (as opposed to a few days later), I do not find that KY was feeling “quite a bit bigger” by August 25. In my opinion, KY was confusing how she felt a few days later with how she felt on August 25. 3. August 28, 2009 [ 139 ] KY phoned Dr. Bahler’s office again on “the following Friday,” August 28. She was “in a lot more pain.” She testified that her stomach felt tight, and her ribs were hurting. She was told by Dr.

Bahler’s staff that “if the pain didn’t go away, I should go to the hospital.” 93.10-20. [ 140 ] KY did not go to the hospital on August 28. 4. August 29-30, 2009 [ 141 ] Neither did KY go to the hospital on August 29 or 30. On the evidence, she drove from Sylvan Lake to Gull Lake with daughter JDA to visit her mother: 260.7-19. [ 142 ] From KY’s conduct I do not infer that she was not in pain, but that her pain was progressing.

The pain was significant enough for a call to her doctor’s office on August 28 but not so severe that she could not visit with her mother on August 29 and 30. [ 143 ] JJM testified that about 3-4 days before she went into labour, KY told him in a telephone call that she was having a lot of discomfort and pain: 2806.14-2607.17. JJM’s testimony would put this call at around August 30. I recognize that this was “prior consistent statement” evidence. KY’s mere repetition of her claims does not give those claims greater weight.

Neither may the call to JJM be regarded as corroborative of KY’s claims: R v Nault , 2019 ABCA 37 at para 19 . However, the fact that the statements were made is circumstantially relevant to the issue of when KY began to feel significant pain. Her statement to JJM supports the inference that she was feeling significant pain by August 30. That is, her claims about the timing of her pain were not based on a confusion between how she felt by August 30 with how she felt at some later time.

See R v Engen , 2011 ONCJ 814 , Paciocco J, as he then was, at paras 84- 89. [ 144 ] Before turning to the evolution of events, I’ll consider two further issues relating to this time period. 5. Did KY Call Dr. Bahler’s Office? [ 145 ] The evidence of the calls to Dr. Bahler’s office comes only from KY. I did not find that KY had a recollection of the calls that was accurate in detail, but I find that she did make the calls when she claimed to have made them and that the contents of the calls were substantially as she described.

Nothing in the examination or cross-examination of KY supported the inference that she did not make the calls she attested to. 6. Did Clinic Staff Advise Dr. Bahler of KY’s Inquiries? [ 146 ] Dr. Bahler’s testimony was that he did not recall a receptionist advising him of any of KY’s telephone inquiries: 3073.14-20. [ 147 ] There was no evidence that clinic staff sent him any electronic message or left any other recorded message about KY’s inquiries. I find that if Dr.

Bahler had been notified that KY had called and that the obstetrical appointment had not been set up, he would have set up that appointment promptly. We shall see later that when he learned that KY had been admitted to hospital he moved promptly to secure a consultation with an obstetrician. L. August 31, 2009: Dr.

Keller - Lacombe Health Care Centre [ 148 ] On August 31, 2009 KY was visiting her mother in Gull Lake. [ 149 ] She testified that she had mid-back pain and cramping, “pain all over.” [ 150 ] KY testified that on this day, “it felt like [her] stomach was going to almost tear;” her “ribs were in a lot of pain;” her “right side was hurting;” she “had pain all over, but mainly [her] stomach felt very tight and very hard:” 94.9-16, 265.20-22.

She confirmed in cross- examination that her stomach was hard, very hard – but she didn’t recall “what it was exactly that day:” 275.12-16. [ 151 ] An element of what might be regarded as self-corroborative evidence was that KY testified that she had worn the same black dress all weekend during the time she was with her mother. It was the only thing that fit her. Her uncle made fun of her because it was the only thing she could wear. This evidence illustrates that KY had reached a size that, at least, did not permit her to wear her other clothing. [ 152 ] On August 31, KY called Dr.

Bahler’s office and her mother drove her to the Lacombe Health Care Centre (LHCC) Emergency Department. 1. Dr. Bahler’s Office [ 153 ] KY testified that she called Dr. Bahler’s office on August 31. She was told to go to the hospital: 94.1-5, 261.19-25, 263.9-12. 93.25-94.5. While she remembered calling Dr. Bahler’s office, she did not recall whether this was before or after she went to the hospital on August 31. [ 154 ] I infer that KY called Dr. Bahler’s office before she went to the LHCC. She did not arrive there until a little after 4 p.m. Had she

called after she returned, Dr. Bahler’s office would likely have been closed. Further, it would make sense that KY called, was advised that if she had difficulties she should go to a hospital, and she then went to a hospital, the LHCC. [ 155 ] Dr. Keller was working in the LHCC Emergency Department on August 31. 2. Dr. Ronald Keller [ 156 ] Dr. Keller received his MD from the UofA in 1979. He completed his residency at Palmerston North Hospital in New Zealand in 1981. [ 157 ] In July 1981 he began practice in Bentley, Alberta. In 1992, he began practicing in Lacombe, Alberta.

From December 1990 to May 1992 and from October 2005 to April 2006 he did locums in New Zealand. [ 158 ] He did emergency room work in Bentley and delivered 20-30 babies per year. [ 159 ] In Lacombe he also did regular emergency room work and did between 30-50 deliveries per year. [ 160 ] Over the years to and including 2009, he had examined about 9,000 pregnant women’s uteruses. [ 161 ] He has taught in the MORE-OB program since 2008. [ 162 ] He has been a clinical lecturer with the Department of Family Medicine, Faculty of Medicine, UofA since 2008. 3. Dr.

Ronald Keller and the Lacombe Health Care Centre [ 163 ] KY arrived at the LHCC at a little after 4 p.m.: 263.22, 3198.15-16. (

a) Nursing Records [ 164 ] The Ambulatory Patient Care Record, AE 53 (LHCC Record) stated that the reason for the visit was mid back pain and that “back pain started 2 days ago [no?] sleep 2 nights – midback pain – cramping to top of stomach:” 265.20-22, 23-266.7; 3201.11-20. [ 165 ] The pain was similar to the pain she had with the kidney infection with JDA (“there were some similarities”): 269.8-13. [ 166 ] She said that she probably was experiencing “frequent urination” when she went to the LHCC: 269.14-17. [ 167 ] KY was seen by an ER nurse.

Her triage score was 4, the least urgent score: 3199.9-22. [ 168 ] KY’s blood pressure, temperature, and pulse were recorded.

All were in normal range: 3200.20-23; LHCC Record. [ 169 ] She recalled that a nurse brought in a fetal heart monitor and checked fetal heart rate with the monitor: 266.15-21. [ 170 ] It is fair to observe that the hospital records did not reflect KY’s descriptions of how she felt (“it felt like my stomach was going to almost tear;” “ribs were in a lot of pain;” “pain all over, but mainly my stomach felt very tight and very hard,” my stomach was “rock hard”): 274.17-275.7. [ 171 ] KY did not recall how hard her stomach was that day, but she testified that (275.8-16): I remember over time, it gradually got harder.

I don’t recall what it was that exact day, but over time, it was very hard. [ 172 ] KY had been in enough pain to have had her mother take her to LHCC Emergency. (

b) Assessment by Dr. Keller [ 173 ] Dr. Keller knew KY and her mother. He had, in fact, delivered KY. KY knew Dr. Keller’s daughter from Church: 95.1-7, 220.1- 6, 18-25. [ 174 ] Dr. Keller reviewed the nurse’s notes and obtained KY’s history. [ 175 ] Dr. Keller assessed KY. The LCHH Record stated that she was at 27 weeks gestation (actually, she was at about 26 weeks). KY told Dr. Keller that she was pregnant with twins: 269.18-20. She testified that she could not recall whether she’d told him she’d had a normal ultrasound but in Questioning she had said that she did: 270.1-19. She did not recall telling Dr.

Keller about the type of twin pregnancy she had. In Questioning she said that she didn’t think she’d told him and she didn’t have an understanding of the implications of her sort of pregnancy at that time: 270.20-15. KY adopted her Questioning responses. [ 176 ] KY told Dr. Keller she’d had a kidney infection when pregnant with JDA and told him she thought she was suffering from a kidney infection: 95.21-24, 268.11-269.7. [ 177 ] Dr. Keller did not do a vaginal examination of KY: 96.4-5. He did do an external physical examination. “He felt my stomach, he felt my back:” 95.18, 273.21-23.

Her back was tender: 274.11-13. [ 178 ] Dr. Keller confirmed that he did not do an internal examination of KY, because By the time I finished my assessment, looked at the monitoring, there was no indication that she was in labour, didn’t present with

abruption, so I felt that I shouldn’t have to put her through that: 3210.20-25. [ 179 ] Dr. Keller testified that what was concerning about KY was that she had twins, she was only 27 weeks, she had some back pain that had persisted for a few days, and she was having cramps at the top of her stomach. These presentation elements raised some concerns about abruption and pre-term labour, as well as other causes, including kidney infection: 3202.1-10, 3236.15-20, 3240.23- 3241.1. [ 180 ] In his Physician’s Assessment, Dr. Keller stated “as above – pain ++ over R flank - Some sweats last [hs?]. No chills/fever.

Twin pregnancy. Last u/s early Aug. Tender R flank to palp …:” AE 53. In his examination, Dr. Keller had found that KY was tender over her right flank to palpation and percussion. He percussed KY’s back. She complained of pain when he did so. [ 181 ] Dr. Keller noted that KY had “a non-tender soft appropriately sized gravid uterus.” [ 182 ] Dr.

Keller stated that So when we palpate the flank and left kidney, that’s from the top of the abdomen down and so she was tender in that area, which is not related to the uterus at all, it’s up high in the right abdomen, and then she was also tender with percussion: 3204.7-12. Dr. Keller stated that the kidney sits just under the ribs, so that’s where she was tender: 3205.6-12. [ 183 ] Dr.

Keller described the method of palpation: we push from the front on the top right corner and push from the back, from on the top right and then we get the patient to take a big breath and that moves the kidney down and the kidney will then hit your hand or the movement of the organ will create pain: 3205.13- 20, 3206.23-3207.1. This indicated that her kidney was irritated, infected, or inflamed: AE 53; 273.21-274.1; 32

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