A.G. v. Rivera, 2024 BCSC 242

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.G. v. Rivera, 2024 BCSC 242 Date: 20240213 Docket: S1611083 Registry: Vancouver Between: A.G., an infant by his Litigation Guardian Li Qu, and Li Qu Plaintiffs And Dr. Loida Rebeca Rivera Defendant Before: The Honourable Justice Veenstra Reasons for Judgment Counsel for the Plaintiffs: D.O. Shane Counsel for the Defendant: D.W. Pilley J.G. Barnum H. Nijjar, Articled Student Place and Dates of Trial: Vancouver, B.C. October 16–20 and 23–27, 2023 Place and Date of Judgment: Vancouver, B.C.

February 13, 2024 Table of Contents Introduction .. 3 Facts .. 3 Background . 3 Medical Context 5 Events of November 30 2014 . 7 Events After November 30, 2014 . 20 Reliability and Credibility .. 23 Legal Principles . 23 Positions of the Parties . 26 Analysis . 27 Standard of Care .. 30 Expert Evidence on Standard of Care . 30 Dr. Hartman .. 30 Dr. Dansereau .. 30 Dr. Kent 34 Legal Principles . 36

Positions of the Parties . 38 Analysis . 40 Conclusion .. 42 Introduction [ 1 ] In this action for medical negligence, A.G. through his mother and litigation guardian, Li Qu, claims damages against Dr. Loida Rivera, an obstetrician and gynecologist seen by Ms. Qu the day before A.G. was born. A.G. was born prematurely at just over 25 weeks of gestation, and suffered a variety of medical complications, including the primary continuing medical complication of “short gut syndrome”. [ 2 ] Both A.G. and Ms. Qu are named as plaintiffs, and it was common ground that Dr. Rivera owed a duty of care to both of them. The primary issues at trial were:

a) whether Dr. Rivera met the applicable standard of care, and

b) if she did not, whether the plaintiffs have established that Dr. Rivera’s breach is a cause of the medical complications suffered by A.G. [ 3 ] For the reasons set out below, I have concluded that Dr. Rivera met the applicable standard of care. As a result, I will not consider the complex causation issues raised on the evidence. Facts Background [ 4 ] Ms. Qu was born in China. She obtained two business degrees in China, during the course of which she studied the English language and passed various English examinations.

She moved to Canada in September 2006 and completed a 28-month degree program at Malaspina University (as it was then known) in Nanaimo. The program was taught entirely in English. [ 5 ] In April 2008, Ms. Qu married Yang Guo, who was also born in China but had come to Canada as a permanent resident in November 2005. [ 6 ] Ms. Qu and Mr. Guo had their first child, L.G., in August 2012. L.G. was born by a regular vaginal birth at over 39 weeks’ gestation. Ms. Qu testified that she had been told by her obstetrician and gynecologist, Dr.

Cigdem Arkuran, in the final few weeks of that pregnancy that she had a short cervix, but that it was “not too short”, and that it would help her to have a quick delivery. [ 7 ] The defendant, Dr. Rivera, graduated from the University of British Columbia’s medical school in 2005, then completed training as an obstetrician and gynecologist in 2010. For the next several years, she did locum work as an obstetrician and gynecologist around British Columbia and the Northwest Territories.

From late 2013 until early 2015, she was on a locum in Richmond, British Columbia, which included shifts on call at Richmond General Hospital. She subsequently became a regular member of the Richmond General Hospital staff. [ 8 ] In the summer of 2014, Ms. Qu became pregnant with a second child. She was again under the treatment of Dr. Arkuran. She understood that her due date was in late March 2015. She said the date had been calculated for her by both her family doctor and by Dr. Arkuran. [ 9 ] On September 3, 2014, Ms. Qu went to Brooke Radiology Associates for an early obstetric ultrasound.

Part of the purpose was as a “dating” ultrasound to confirm the gestational age. The report concluded, based on measurements taken, that the estimated gestational age was 12 weeks and 4 days, meaning the due date was several days earlier than previously understood. [ 10 ] Dr. Rivera explained in her evidence that it is routine for patients to be offered an ultrasound at approximately seven to 12 weeks of gestation, given that that is the most accurate time and means to date the pregnancy. A dating ultrasound is more accurate than a calculation based on last menstrual period.

It is based on measurement of the crown-rump length, and is generally considered to be accurate within plus or minus five days. Ultrasounds at later stages of a pregnancy are less accurate for determining gestational age, and have a much broader margin of error. [ 11 ] On November 19, 2014, Ms. Qu returned to Brooke Radiology Associates for a further ultrasound. A report was generated containing the results of the ultrasound (the “November 19 Ultrasound Report”), which noted that: Est.

Gestational Age: Measurements all exceeding the 90 th percentile for the expected gestational age of 23 weeks 4 days based on the first sonogram of September 3 rd . [ 12 ] If the gestational age was 23 weeks and 4 days on November 19, 2014, then 11 days later on November 30, 2014, the gestational age would have been 25 weeks and 1 day.

Medical Context [ 13 ] Before delving into the events of November 30, 2014, I will deal with some of the terminology and background medical information. Much of what is set out below comes from the expert reports of Drs. Jerome Dansereau and Nancy Kent (which I will review in more detail below). I note that, because their reports dealt with issues of standard of care, they are focused on the state of medical knowledge in late 2014. [ 14 ] In terms of terminology:

a) Preterm delivery is defined as a birth that occurs after 20 weeks but before 37 weeks of gestation. Approximately 10% of all births are preterm deliveries.

b) Extreme preterm delivery is the subset of preterm deliveries that occur before 28 weeks. Almost 1% of all births are extreme preterm deliveries (i.e., almost 10% of all preterm deliveries). [ 15 ] Changes in neonatal care over the past 30 years have led to improved survival at early gestational ages, particularly for those born at 24 weeks (plus or minus a week) or later. [ 16 ] Dr. Dansereau’s evidence was that, in 2015, only about 70% of infants born at a gestational age of 24 weeks would survive. Dr.

Kent referenced a study published in 2008 by two neonatologists at BC Women’s Hospital, which she described as “still the primary source of information for caregivers counselling families” in 2014. That study was based on data collected for the years 1999 to 2006. It concluded that the survival rate to discharge from the neonatal intensive care unit (“NICU”) was 20% for those born at 23 weeks, 59% for those born at 24 weeks, and 80% for those born at 25 weeks. [ 17 ] Cases of extreme preterm delivery also involve significant risk of various long-term impairments including neurodevelopmental handicaps.

For infants that survive, possible health concerns that might arise in the immediate days to weeks after birth or, in some cases, as chronic health conditions, include difficulty breathing, possible bowel surgery, anemia requiring blood transfusion, infections, brain injury, chronic lung disease, blindness, deafness, cerebral palsy, and neurodevelopmental impairment. With respect to these, Dr.

Kent referenced the 2008 study, which calculated that, for those infants who survived extreme preterm delivery, there was a 40% chance of a normal neurodevelopmental outcome, a 30% risk of a mild impairment, a 20% risk of a moderate impairment, and a 10% risk of severe impairment. [ 18 ] As a result of these risks, in cases where there is a risk of extreme preterm delivery, a patient and their family are asked to consider their wishes for possible resuscitation of their newborn, inclusive of various levels of intervention provided by a neonatologist.

Active intervention might include intubation, CPR and support with a ventilator. Alternatively, a patient might decline active interventions and resuscitation of the baby, and instead choose to have only “comfort care” or “compassionate care” of the newborn if they are born that early. [ 19 ] Dr. Kent described the available options for a patient at risk of extreme preterm delivery as including: (

a) doing nothing; (

b) being admitted to hospital for further observation; (

c) more active antenatal care, which might include the administration of corticosteroids to try to improve neonatal outcomes; (

d) medications that might decrease contractions, if indicated; and (

e) transfer to a hospital with a NICU. [ 20 ] Decisions with respect to these options are the subject of obstetrical counselling of parents in cases where there is an identified risk of preterm birth. [ 21 ] Dr. Kent noted that, in the 2008 study, the authors recommended the following: At 23 weeks – discourage resuscitation and intensive newborn care offering palliative care only, but to provide intensive care at the request of well-informed parents.

At 24 weeks – provide “active” resuscitation and intensive newborn care if requested, but to allow parents an option to withhold active management if that is their informed wish.

At 25 weeks – to recommend and provide full resuscitation and intensive newborn care, but if well-informed parents elected not to accept intensive care then this care should not be imposed upon them. [ 22 ] While these are simply recommendations of the authors, what is clear is that the decision-making of well-informed parents is fundamental to the process. [ 23 ] Finally, the evidence indicated that Richmond General Hospital has a NICU and will generally deal with births at gestational ages of 32 weeks or later.

The hospital has the capacity to look after more severe preterm infants for a short time, but the practice is to transfer them as soon as possible to a tertiary care facility. The nearest tertiary care facilities to Richmond are BC Women’s and BC Children’s Hospitals in Vancouver. Events of November 30 2014 [ 24 ] I turn now to the events of Sunday, November 30, 2014. [ 25 ] Much of the evidence at trial related to what happened that day. The various witnesses gave evidence based on their best recollection.

The various clinical records that were in evidence contain contemporaneously recorded times for many of the various steps that occurred during the day and, while the parties may disagree as to the meaning of some of those records, the fact that they were recorded and the accuracy of the notations as to time was not disputed. As a result, in the factual narrative I will (unless otherwise stated)

adopt the times as set out in those clinical records. [ 26 ] Ms. Qu came to Richmond General Hospital on the morning of November 30, 2014. Her evidence was that, when she had gone to the bathroom that morning, she had noticed two to three drops of blood on her underwear. The practice at Richmond General Hospital was for the emergency department to refer patients like Ms. Qu directly to the labour and delivery rooms two stories above the emergency room. [ 27 ] Ms. Qu was assessed by a nurse, Sandi Kempler, at 10:30 am. According to Nurse Kempler, Ms.

Qu advised Nurse Kempler that her estimated date of delivery was March 24, 2014. Based on that information, Nurse Kempler calculated that the estimated gestational age was 23 weeks and 5 days. This information was recorded on the triage and assessment record (“TAR”). [ 28 ] It was common ground at trial that the actual gestational age on November 30, 2014, was 25 weeks and 1 day. This accords with the result of the dating ultrasound on September 3, 2014, as well as assessment of the newborn on December 1, 2014. The estimated date of delivery recorded on the TAR was incorrect.

There is, however, no dispute that if the expected delivery date had been March 24, 2014, then the gestational age of 23 weeks and 5 days was correctly calculated. [ 29 ] Ms. Qu did not recall any discussion with the triage nurse about her estimated delivery date. She recalls simply providing her name and MSP number and having her temperature and blood pressure recorded, then being taken to the monitoring room. [ 30 ] Ms. Qu testified that the nurse did not ask her about her due date, and that it was only the doctor that asked that question. She said that both her family doctor and Dr.

Arkuran “had done the calculation for me”. However, on cross-examination she said that she could not have provided the “exact” due date because she did not have knowledge of it. [ 31 ] Nurse Kempler identified the handwriting on the TAR as hers. Her evidence is that it was her practice, when assessing a new patient, to go through the various boxes on the first page of the form and to obtain and record information with respect to each part of the form. Nurse Kempler said that the nurses at Richmond General Hospital are trained to go through the form in the order set out on the form.

The form clearly indicates, in Nurse Kempler’s handwriting, an estimated date of delivery of “Mar 24/14” and a gestational age of “23+5”. Nurse Kempler testified that her reference to the year 2014 was a mistake, and that it should have said 2015. [ 32 ] Nurse Kempler also noted on the TAR that there had been an “u/s at brooks radiology”. Presumably, steps were taken to request the ultrasound report, notwithstanding that it was a Sunday.

As will be noted below, a copy of the November 19 Ultrasound Report appeared on a fax machine later in the day. [ 33 ] The TAR also contains various observations by Nurse Kempler at both 10:35 am and 4:15 pm that day. They include the fetal heart rate, as well as Ms. Qu’s blood pressure, pulse, and temperature. [ 34 ] All of Ms. Qu’s conversations with Dr. Rivera and with Nurse Kempler were in the English language. All three of them gave evidence that they felt there were no issues with their communication. Ms. Qu said that if she did not understand anything she would have asked, but she felt no need to do so.

Dr. Rivera gave evidence that if she had any concerns about communication, she would have requested an interpreter, and that interpreters were readily available, but that she felt no need to do so. [ 35 ] At trial, Ms. Qu testified through an interpreter. She advised that she was doing so simply because she was concerned about being precise with matters of medical terminology, and that she was more confident in her ability to be precise when speaking in Mandarin.

However, she remained of the view that when she was at the hospital on November 30, 2014, she had been able to understand and communicate with the nurse and doctor in English without difficulty. [ 36 ] Ms. Qu said in her evidence that she recalled three interactions with Dr. Rivera: first, when she first arrived and Dr. Rivera was standing at the counter of the nursing station; second, when the doctor came in to the examination room to collect a pad that Ms. Qu had been given to wear; and, third, shortly before she left the hospital. Ms.

Qu’s evidence was that, after the first interaction, she was given the pad and told to wait in an examination room. [ 37 ] Dr. Rivera said that she had three interactions with Ms. Qu. The first two interactions took place in the morning. First, Dr. Rivera completed an initial interview of Ms. Qu, following which she went to the laboratory to perform a ferning test. Second, once she had completed the test, she returned to speak with Ms. Qu and advised that she was arranging for an ultrasound. [ 38 ] Dr. Rivera documented her dealings with Ms. Qu in two ways. The first was by way of handwritten notes in a

section of the hospital’s clinical records headed “History and Progress Notes” (the “Clinical Notes”). Dr. Rivera identified two pages of such notes in her handwriting in the clinical records: the first with a time notation of 11:35; and the second with a time notation of 17:00. Her evidence was that her practice was to write out her clinical notes after her meeting with the patient, and that the time she recorded was the time she began writing. [ 39 ] The other record created by Dr. Rivera was a dictated consultation report (the “Consultation Report”).

That report was transcribed and is just over two pages in length. It contains two timestamps, both on November 30, 2014. The first (17:24:01) is the time the report was dictated. The second (17:57:46) is the time it was transcribed. Dr. Rivera was not sure whether the first timestamp reflects the time she began recording or when she finished recording. [ 40 ] The other notes taken during the day are those of Nurse Kempler, which appear on the back side of the TAR. They record an initial set of information at 10:45 am, that Dr.

Rivera reported that “ferning results negative” at 11:15 am, that an ultrasound was booked for 15:00, that the patient was taken to ultrasound at 15:00, and that the patient returned from the ultrasound at 16:15. [ 41 ] Based on the combination of the various documents in evidence, Dr. Rivera testified that: her first session with the patient began at 10:45 am and lasted about 15 minutes, including the taking of a patient history; after the first session, she sent a text and then did the ferning test; she then had a second discussion with Ms.

Qu; and, finally, she prepared the Clinical Notes arising from her two morning interactions at 11:35 am.

[ 42 ] Dr. Rivera gave evidence as to her usual practice when first meeting with a patient like Ms. Qu. She said that, given that Ms. Qu had presented with concerns about bleeding, Dr. Rivera would have asked questions covering recent activity (contractions, cramping, other bleeding, fluids), general details about the current pregnancy, what ultrasounds she had had, and her experience with any previous pregnancies. [ 43 ] Dr. Rivera’s notes recorded at 11:35 am include a reference to “23 w 5” and “EDC Mar 24/14”. Dr.

Rivera’s evidence was that, even though the intake nurse would have already collected this information, her practice was to verify the due date with the patient, and ask them what the due date is based upon. She noted that, although it was common for antenatal records to be sent to the hospital around the time a patient is at about the 20-week level, that had not happened in this case. As a result, in the course of her dealings with Ms.

Qu during the day, she did not have access to antenatal records that would have included the dating ultrasound. [ 44 ] The handwritten notes of 11:35 am include a number of comments under the heading “HPI”, which is an abbreviation for “History of Presenting Illness”. Those notes indicate that Ms. Qu described a new onset of vaginal bleeding that morning, including a small gush of blood with clot. She reported some irregular cramping, increasing in the last couple of days, but none at that moment. Ms.

Qu reported having had an ultrasound about one week prior, with no abnormality known. [ 45 ] With respect to past medical history, Dr. Rivera noted being advised that Ms. Qu had a spontaneous vaginal delivery in 2012 at 39 weeks, and that she had been told at that time that she had a short cervix. [ 46 ] At 10:59 am, Dr. Rivera sent a text to Dr. Arkuran, saying: Hey can u look up records on pt qu, li on ur system dob – [redacted]. 23w5 with bleed ? Rom. Can fax to LDR? Pls and thanks [ 47 ] With respect to the two abbreviations in the text, Dr. Rivera explained that “?

Rom” was a short form of “quaere rupture of membrane”. Rupture of membrane was one of the possible circumstances that Dr. Rivera was investigating. “LDR” was a reference to the labour and delivery room. [ 48 ] Dr. Arkuran did not respond to this text. Dr. Rivera said that this was not surprising, given that it was a Sunday and Dr. Arkuran was not on call, but she had made the effort to get additional information just in case. [ 49 ] After sending this text, Dr. Rivera performed the ferning test.

It involves examining fluid from the patient under a microscope, in order to determine whether it contains any amniotic fluid. The result was negative. Dr. Rivera recalled that she spoke briefly with Ms. Qu after completing the ferning test, and then did not see her again until after the ultrasound. [ 50 ] Dr. Rivera recalled explaining to Ms. Qu the reason she was conducting various tests and ordering an ultrasound: that with the bleeding that Ms. Qu had reported, there was an increased risk of preterm delivery, and it was important to understand the cause. In her direct examination, Dr. Rivera recalled that Ms.

Qu expressed some emotional upset at the very mention of the possibility of preterm delivery at this initial meeting. In cross-examination, she was less certain as to whether that emotional upset was expressed at their morning meeting or later in the day. [ 51 ] Ms. Qu disputed that she and Dr. Rivera actually had a conversation in the morning. She said that in the morning, Dr. Rivera only came in to check whether there was any more blood in the pad. [ 52 ] The Clinical Records contain an “Orders” page. At 11:30 am, instructions from Dr. Rivera were noted for Ms.

Qu to have diet as tolerated, bedrest with bathroom privileges, and monitoring of the fetal heart rate. Various lab tests were ordered, which Dr. Rivera explained as being for the purpose of ruling out various other possible causes of Ms. Qu’s symptoms. [ 53 ] Dr. Rivera’s notes recorded at 11:35 am include the notation “NYD”, which she explained means “not yet diagnosed”. Her note continued to state that she wanted to rule out rupture of membrane, check for a short cervix, and check for further leaking.

She noted that steps to be taken included observation, an ultrasound, and obtaining pre-natal records. [ 54 ] Dr. Rivera explained in cross-examination that as of this point in the day, she had identified a risk factor (the bleeding) and a number of concerns to be ruled out, but had not yet established a diagnosis. While there was a risk at that point, she was not yet in a position to assess what that risk was or how serious it was. [ 55 ] The November 19 Ultrasound Report was faxed (based on fax markings) at about 1:12 pm. Dr.

Rivera identified the telephone number on the fax header as the fax number of the Richmond General Hospital birth centre. However, Dr. Rivera’s evidence was that she did not see this document until she was in the process of dictating her Consultation Report at 5:24 pm. [ 56 ] As noted above, Ms. Qu was taken to the ultrasound at 3:00 pm and returned at 4:15 pm. The radiology diagnostic report is timestamped 4:29 pm. The author, Dr. Daniel Hou, noted in the report that he was working with an estimated date of birth of March 24, 2014 (the same date recorded by both Nurse Kempler and Dr.

Rivera), and commented that: All fetal biometry parameters are congruent, given the estimated gestational age of 23 weeks 5 days at the time of the scan. [ 57 ] The report also noted that the “Cervix is shortened, measuring 1.6 cm.” [ 58 ] Dr. Hou gave evidence that, at this approximate gestational age, an estimate of gestational age by ultrasound is only accurate to within approximately two weeks. Dr. Rivera’s evidence was that she understood at the time that an estimate of gestational age by ultrasound at this gestational age was accurate to within 10–14 days. [ 59 ] Dr.

Rivera’s evidence was that this report identified normal growth, normal amniotic fluid index, and normal posterior placenta— all of which helped to rule out specific concerns. However, the shortened cervix was a risk factor—it was measured as 1.6 cm, when it should have been 2.5 cm at this stage in the pregnancy.

[ 60 ] Dr. Rivera’s evidence was that upon the radiology report coming up on her computer, she went to meet with Ms. Qu. That meeting would have occurred between 4:29 pm (when the radiology report was completed) and 5:00 pm (when Dr. Rivera began to prepare her handwritten Clinical Notes). [ 61 ] Dr. Rivera’s evidence was that in the meeting with Ms. Qu, she asked if she had experienced any more bleeding, pain, or contractions, and that Ms. Qu said she had not. Ms. Qu also advised that she was feeling the baby. [ 62 ] Dr. Rivera recalled: sharing with Ms.

Qu that her cervix was short, which indicated a risk of preterm delivery; telling her about what that could mean at this point in the pregnancy, including the decisions to be made; and bringing up the use of steroids “if she would wish everything to be done” in terms of full and active resuscitation. Dr. Rivera recalled that when she asked Ms. Qu what her wishes would be, Ms. Qu was very resistant to that discussion. Specifically, Dr. Rivera recalled Ms.

Qu becoming somewhat upset at the suggestion that she could deliver early, saying that she had this (i.e. a short cervix) in her last pregnancy and everything was fine, and saying she wanted to go home. Dr. Rivera recalled discussing with Ms. Qu what had happened in her last pregnancy, and saying that chances were the same would happen this time, but that there was still a risk. [ 63 ] Dr. Rivera said that she offered Ms. Qu a stay in the hospital, and told her that normally she would recommend that a patient stay in the hospital in order to be observed so that action could be taken more quickly.

However, she told Ms. Qu that if she wanted to go home, that would be okay given that there were no contractions and no bleeding at the moment, but that she would need to come back with any contractions, bleeding, cramping, or anything of the sort. Dr. Rivera said that she also told Ms. Qu that she would want to do another ultrasound in two days to assess if the cervical length had further shortened. [ 64 ] Dr. Rivera recalled that the conversation was difficult because Ms. Qu was upset with her, while Dr. Rivera was frustrated because Ms. Qu was not really engaging in the discussion and simply wanted to go home.

Dr. Rivera recalled feeling like she had “negotiated” the plan for Ms. Qu to come back in two days so that they could have the discussion again. She did say that in her view it was “not unreasonable” for Ms. Qu to leave, given that there were no contractions and no further bleeding, that she lived nearby, and that she had been given instructions on when to return. Dr. Rivera expressed the view that this course of action would allow Ms.

Qu time to think about and digest the situation, and to possibly discuss the situation with her primary care provider, all before revisiting the question after a follow-up ultrasound. [ 65 ] Ms. Qu’s evidence was quite different. She said that Dr. Rivera told her she was at risk of having a miscarriage. She denied being told there was a risk of premature birth. She said there was no discussion of any medications that might have helped her unborn child, or even that in the event of a premature birth, the child might survive. [ 66 ] Ms.

Qu was adamant that if the doctor had recommended a medication, she would have taken it. [ 67 ] Ms. Qu said that she was told to return if she experienced any more symptoms, such as bleeding or fever. She said she was not offered an opportunity to stay overnight. She did not recall being told to come back in two days for a further ultrasound. [ 68 ] On cross-examination, Ms. Qu acknowledged being told that the ultrasound showed a shortened cervix. She said that she had had a shortened cervix before with her first child, but that this time, the doctor thought it was a problem. Ms.

Qu said she thought this was connected to the risk of a miscarriage. [ 69 ] Ms. Qu denied having become upset, and said her entire conversation with the doctor was peaceable. She recalled the entire conversation being about her bleeding—why she was bleeding, how to stop the bleeding, and whether it was bad for the child—and that the doctor told her there was no medication that could stop the bleeding because it was insignificant. [ 70 ] Dr. Rivera was quite certain she would not have used the term “miscarriage” in this context.

In the obstetrical world, the term “miscarriage” is only used at a gestational age of less than 20 weeks. [ 71 ] Dr. Rivera’s handwritten notes recorded at 5:00 pm begin with notes as to what had been discerned from the ultrasound that day —normal biometry, normal amniotic fluid index, normal posterior placenta, and cervix 1.6 cm long and closed. The notes then record that there had been no further vaginal bleeding, no cramping, and that there was normal fetal movement and heart rate. With respect to impression and plan, Dr.

Rivera noted that there were no symptoms now, and that there was a short cervix but a history of similar in the last pregnancy. She recorded the words “23w5” and “previable”. The note references two options: outpatient bedrest and inpatient bedrest. It records that the patient preferred outpatient bedrest with repeat ultrasound in two days, but was to return with any further cramping or bleeding. The note continues “consider steroids in two days if further shortened cervix”. [ 72 ] It was put to Dr. Rivera in cross-examination that her notes of “23w5” and “previable” reflected that Dr.

Rivera thought the unborn child was not viable at that point, and that she therefore chose not to discuss resuscitation or the use of steroids at that time, because in her mind the baby was still unlikely to survive. Dr. Rivera denied this. It was also put to Dr. Rivera that she had chosen to delay these conversations for two days because in two days, the gestational age would have reached 24 weeks, and the baby would no longer be, in her mind, “previable”. Dr. Rivera denied this as well.

She explained that her understanding in 2014 was that 24 weeks was considered to be the point at which the chances of survival surpassed 50%, and as a result it was considered to be a “threshold” for viability. However, her evidence was that there is a progressive improvement in viability with every single day of the pregnancy rather than there being a specific line. [ 73 ] Dr. Rivera’s evidence was that, had Ms. Qu at that time expressed that she wanted full resuscitation, Dr. Rivera would have been prepared to give her the first dose of steroids that day. Dr.

Rivera noted that antenatal steroids are at their peak effectiveness after 48 hours, and their impact is felt for up to seven days. Her evidence was that a decision on November 30, 2014, would not have been just about that day, but rather about the potential for the coming week. [ 74 ] Dr. Rivera agreed that the Clinical Notes do not contain details of her discussion with Ms. Qu. She explained that notes in a medical chart are intended to be limited to the basic facts, with no subjective comments.

She is able to flush out matters in her dictated report, but even then is “very neutral” in her documentation of patient interactions.

[ 75 ] Nurse Kempler made further notes on the back of the TAR subsequent to noting Ms. Qu’s return from the ultrasound. Those notes record that: the ultrasound results were shared with the patient by Dr. Rivera; the plan was bedrest with a follow-up ultrasound in two days; there was “teaching” regarding fetal movement count, labour, bleeding, and “when to call or return to hospital”; and the patient was discharged to home with her husband. The form states the time of discharge as 5:45 pm. [ 76 ] Nurse Kempler gave evidence that she had a conversation with Ms. Qu after Ms. Qu had spoken with Dr.

Rivera, and that she emphasized to Ms. Qu the value of staying at the hospital for observation. She recalled Ms. Qu saying that she needed to go home to care for her child. Nurse Kempler recalled telling her that the worst that could happen was that her child might stay up later than normal and eat less healthily, but that it was better for Ms. Qu to stay at the hospital. She said this conversation did not change Ms. Qu’s mind. [ 77 ] As noted above, Dr. Rivera then proceeded to dictate the Consultation Report, with a timestamp of 5:24 pm. That report reflects Dr.

Rivera’s understanding that the current gestational age was 23 weeks and 5 days. It records the following: History She is currently 23 weeks and 5 days gestation. She has had irregular lower abdominal cramping-type pain over the last few days. It woke her up last night from sleeping. She noted bleeding this morning with bright red blood and a small clot when getting up to pee in the bathroom. She then presented here. She denies any leaking of fluid. She has had no further cramping since last night. There has been good fetal movement.

She had a detailed ultrasound 1 week ago which was normal, and this report was obtained which showed normal details in biometry, posterior placenta and a cervix that was long and closed, but only done abdominally . Past Obstetrical History She had an SVD in 2012 at 39 weeks. She did have a short cervix noted in that pregnancy as well, and was followed closely but she did not have bleeding or cramping in that pregnancy. … Physical Examination She was seen initially at 1135 hours and reassessed at 1700 hours. She was afebrile. Vital signs were stable. The abdomen was soft and nontender.

Fetal heart rate was normal in intermittent auscultation. Speculum examination revealed a molted os appearance to the cervix. There was a small amount of bleeding in the vagina, but no pooling. Nitrazine and ferning were negative. On vaginal exam, she did not tolerate palpation well and the cervix could not be easily palpated. … Investigations OB ultrasound was obtained. Fetal biometry was normal. AFI Dopplers were normal. The placenta was noted to be posterior. The cervix was found to be short on transvaginal scan at 1.6 cm. She did not tolerate an endovaginal scan.

With observation in the hospital, she did not have any further bleeding and she denied any further cramping. Impression and Plan Li presents with ____ bleeding and short cervix at 23 weeks and 5 days gestation. We discussed the potential for severe preterm delivery given the short cervix , however she has a good prognosis given her previous term delivery. She was offered the option for inpatient observation , but declined. She is recommended to have a repeat transvaginal ultrasound in 2 days’ time for review the cervical length. She is to return to hospital with any recurrence of cramping, pain or bleeding.

We discussed the option for betamethasone administration should we perceive a risk of delivery within the next week. Her cervix is short, and she is currently previable . She did not wish to address this type of concern today . She became quite emotional when we discussed this earlier. This can be reassessed in 2 days’ time with repeat ultrasound. I would strongly recommend betamethasone administration should she show persistent or worsening short cervix at that time. She will be reviewed by the obstetrician on call, following the ultrasound as an outpatient. Dr.

Arkuran, who is her OB physician, will be updated as to her status. [Emphasis added.] [ 78 ] Dr. Rivera acknowledged that the Consultation Report referenced the November 19 Ultrasound Report. As noted above, this report had been faxed to the birth centre at about 1:12 pm (according to the fax marking). Her recollection was that she had not had it during her discussion with Ms. Qu or her preparation of her handwritten Clinical Notes at 5:00 pm. Her reference to the November 19 Ultrasound Report in the Consultation Report notes that Ms. Qu’s cervix length on November 19, 2014 (at 3.0 cm) had been normal. [ 79 ] Dr.

Rivera acknowledged that the November 19 Ultrasound Report also referenced a gestational age of 23 weeks and 4 days at the time of the ultrasound, which was 11 days earlier. She agreed that one could, from this notation, have calculated that the gestational age as of November 30, 2014, was 25 weeks and 1 day. She agreed that she did not recognize that at the time she reviewed the report. [ 80 ] As noted above, Dr. Rivera dictated the Consultation Report at 5:24 pm. At 5:27 pm, Dr. Rivera sent a further text to Dr. Arkuran advising: Hey, qu, li had us showed normal fluid and short cx 1.6 cm.

No further bleed or cramping today. Declined inpt observation . Ordered repeat us in 48 hrs. No steroids today, pt couldn’t handle the thought of possible preterm delivery . I have asked her to come to LDR after us on Tuesday for review. [Emphasis added.] [ 81 ] Dr. Rivera was asked whether she would have done anything different had she known that the actual gestational age was 25

weeks and 1 day, rather than 23 weeks and 5 days. Her evidence was that she would not have. She would have been prepared, had Ms. Qu expressed a desire to have full resuscitation, to begin a course of betamethasone on November 30, 2014, even based on a gestational age of 23 weeks and 5 days. She acknowledged that had she engaged in a full discussion of the chance of survival, she would have told Ms. Qu that at 23 weeks and 5 days it was less than 50%, while at 25 weeks and 1 day she would have said it was 50–80%.

But she would also have said that this was a very critical time in the pregnancy and decisions may have to be made at any time. Dr. Rivera said she would have discussed steroids in the context of their impact on delivery at any time in the next week (that being the time frame within which a course of betamethasone is effective). Dr. Rivera’s evidence is that she sees the steroids as not being just for the day they are commenced, but rather as dealing with the risk of preterm delivery over the course of subsequent days. She was clear that, if Ms.

Qu had said that she wanted everything done to resuscitate her baby, then she would have said to start the betamethasone right then. However, Dr. Rivera said they simply did not get to that point in the discussion. Events After November 30, 2014 [ 82 ] In the very early hours of the morning of December 1, 2014, Ms. Qu awoke on at least two occasions with pain in her lower abdomen. Her evidence was that she drove herself to the hospital at about 5:00 am. The hospital’s clinical records show that she arrived at about 8:00 am. Her home was about a ten-minute drive from the hospital.

The hospital records note that Ms. Qu reported more cramping and bleeding. [ 83 ] Dr. Rivera was no longer on duty—her on-call shift had ended at 8:00 am—and Dr. Helen Robson was the obstetrician and gynecologist on call. [ 84 ] An ultrasound at about 9:30 am on December 1 showed that Ms. Qu’s cervix measured less than one cm in length. The report described it as “dynamic”, measuring between 0.7 and 0.9 cm. The measurement the previous afternoon had been 1.6 cm. [ 85 ] At 11:45 am, Ms. Qu was administered a first dose of betamethasone. [ 86 ] In her evidence, Ms.

Qu said she did not recall whether she was given any medications, or having spoken to a doctor that morning. Her evidence was that it was not until early afternoon that a doctor told her she might well deliver that day. [ 87 ] Dr. Robson’s notes recorded at 12:20 pm reflect that Dr. Robson was arranging a transfer of Ms. Qu to BC Women’s Hospital. However, Dr. Robson did an examination prior to the transfer and observed that the patient was 9 cm dilated. Dr. Robson records that Ms. Qu was transferred to a birth room, the maternal transport was cancelled, and the NICU team was mobilized. Ms.

Qu started to push at 2:35 pm and A.G. was born at 2:37 pm. His weight at birth was 935 g. [ 88 ] A.G. was very quickly transported to the NICU at BC Children’s Hospital where he spent the first six months of his life. Ms. Qu was also transported to BC Women’s Hospital for recovery. [ 89 ] Over those six months, A.G. went through six surgeries. In about May 2015, A.G. was transferred from the NICU to a ward at BC Children’s Hospital. Ultimately, in the latter part of 2015, he was able to come home. [ 90 ] A.G. experienced a number of the typical complications of a child born at a gestational age of 25 weeks.

The complication that continues to significantly impact his life relates to his bowels. He suffered from necrotizing enterocolitis (“NEC”), underwent a distal small bowel resection on December 9, 2014, and has continued to experience gastrointestinal issues since. [ 91 ] NEC is a disease process of the gastrointestinal tract of a premature neonate that results in inflammation and bacterial invasion of the bowel wall. According to one of the experts, it occurs in 1–5% of all NICU admissions and in 5–10% of all very low birthweight (<1500

g) infants. [ 92 ] Because significant parts of his intestinal tract had to be removed, A.G. has what is known as “short gut syndrome”. The result of this is that nutrition ingested through his mouth (technically known as “enteral feeding”) cannot be absorbed adequately through his shortened intestinal tract.

Thus, he relies on additional nutrition received through parenteral hyperalimentation, also known as total parenteral nutrition (“TPN”). [ 93 ] In the years since his release from the NICU, there have been multiple efforts by A.G.’s medical team to support the adaptation of his remaining bowel to achieve enteral feeding as his sole source of nutrition. However, he remains dependent on TPN, which requires central venous access. There are limited numbers of “access” sites on the body that permit the delivery of TPN. At some point, tissues are damaged with respect to a site, which prevents its ongoing use.

A.G. is now down to his last such site, which puts him at significant risk. [ 94 ] A.G.’s parents have been devoted to the care of A.G. They have been trained in the delivery of TPN, in the cleaning of delivery sites, and the changing of dressings. As well, in light of his significantly shortened intestinal tract, A.G. has much more frequent bowel movements and requires additional care to prevent inflammation of his buttocks. A.G.’s parents have taken turns staying up at night to care for him. Mr. Guo had serious heart surgery in 2018, which has reduced his ability to assist with A.G.’s care.

The resolve and dedication of both parents to help A.G. to live a full life are admirable. [ 95 ] A.G. started kindergarten in 2019, at the regular time for his age. Other than remaining home for an extended period of time due to Covid, he has continued to attend school with the assistance of an aide. He is still, however, regularly admitted to hospital which impacts his ability to keep up with the curriculum. [ 96 ] A.G. was assessed in 2021 for the possibility of an intestinal transplant. He was approved for the procedure, but his parents have not yet placed him on the waiting list.

They are very concerned about the risks of such surgery. They have been advised that the survival rate three years after transplant is 72%, and five years after surgery, it is 50%. There are time constraints to any decision as to this transplant, as A.G. may no longer be eligible if he does not have an available TPN access site.

[97] At present, A.G. is using an experimental medication that may help grow or increase the bowel capacity. It is not known howwell that will work. [98] It is clear that A.G.’s life has been significantly affected by complications from his preterm delivery. The plaintiffs’ theory of thecase is that Ms. Qu should have been provided with a first dose of betamethasone on November 30, 2014, rather than on December 1,2014, and that this would have decreased the risk or the extent of the complications that A.G. experienced.

Reliability and Credibility [99] As can be seen, there are significant differences between the evidence of Ms. Qu, on the one hand, and Dr. Rivera and NurseKempler, on the other. [100] I have not referenced the evidence of Mr. Guo. Mr. Guo had a heart attack in 2018, which led to bypass surgery and a significanttime in hospital. He testified that he has had issues with his memory since his heart surgery. He was unable to recall much other than thathe drove Ms.

Qu home on the evening of November 30, 2014. [101] Neither party suggested that any of these fact witnesses was not “credible” in the sense of their veracity. However, each suggestedthat the recollection of the other witnesses was less reliable given the time that has passed. In that regard, it is noteworthy that the trial ofthis matter was in October 2023—just short of nine years after the events in issue. Legal Principles [102] Reliability and credibility are related but distinct concepts. The distinction between them was considered in R. v.

Morrissey(1995), 22 O.R. (3d) 514 at 526, (C.A.), cited in United States v. Bennett, 2014 BCCA 145 at para. 23: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. Theaccuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility.

When one is concerned with the accuracyof a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. ... [103] In considering these matters, the evidence of a witness must be assessed for “its harmony with the preponderance of theprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Farynav.

Chorny, [1952] 2 D.L.R. 354 at 357, (B.C.C.A.). [104] A frequently cited list of factors in assessing evidence as to both the veracity of a witness and the accuracy of that witness’evidence is found in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296. It includes:

a) The ability and opportunity of the witness to observe events;

b) The firmness of their memory;

c) Their ability to resist the influence of interest to modify their recollection;

d) Whether their evidence harmonizes with independent evidence that has been accepted;

e) Whether the witness changes their evidence during cross-examination (or between examination for discovery and trial) or isotherwise inconsistent in their recollection;

f) Whether their evidence seems generally unreasonable, impossible or unlikely;

g) Whether the witness has a motive to lie; and

h) The demeanour of the witness generally. [105] A trier of fact may accept none, part, or all of a witness’ evidence and may attach different weight to different parts of a witness’evidence: Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at para. 28. [106] I have referred above to the medical records created by Dr. Rivera and Nurse Kempler. As noted in Gilmore v.

Love, 2023 BCSC1380 [Gilmore]: [54] It is well established that documents created at the time of the events themselves can be helpful in providing an accuratereflection of what occurred, in addition to, or even in preference over, the memories of the participants that have aged with the passage oftime, hardened through litigation, or been reconstructed: Bradshaw at para. 188. [55] In the absence of evidence to the contrary, courts have found that contemporaneous chart entries are business records admissiblein evidence as prima facie proof of the facts stated therein: Ares v.

Venner, (SCC), [1970] S.C.R. 608 (S.C.C.) at 626.Furthermore, where oral testimony based on a witness’ memory conflicts with contemporaneously recorded written records, the writtenrecords may be a more reliable source of evidence: Skeels Estate v. Iwashkiw, 2006 ABQB 335 (Alta. Q.B.) at para 127; Williams v.Rosenstock, 2020 ABQB 303 at paras. 13-14.

[107] Some of Dr. Rivera’s evidence referenced her standard practices. As noted in Gilmore: [62] It is well-established that the court may consider evidence of a medical practitioner’s common or usual practice, and evengive it significant weight. The usefulness and admissibility of such evidence was expressed in Belknap v.

Meakes, , 64D.L.R. (4th) 452 (B.C.C.A.) as follows: [39] If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, thatsurely is evidence and possibly convincing evidence that he did it in that way on the day in question. [40] Wigmore: On Evidence, vol. IA (Tillers, rev. 1983), states that there is no reason why habit should not be used as evidenceeither of negligent action or of careful action (para. 97), and that habit should be admissible as a substitute for presentrecollection.

Phipson on Evidence, 13th ed. (1982), paras. 9-22, reaches a similar conclusion. [63] Even where there is medical charting evidence, but those charts contain no documentation of a particular act, “evidence ofstandard practice is admissible as evidence of what happened”: Wiebe v. Fraser Health Authority, 2018 BCSC 1710 at para. 118. Thiscourt has also stated that: “the absence of a chart note will not deprive a health practitioner of the ability to rely on his or her standardpractice on a matter”: Parhar v. Weaver, 2021 BCSC 123 at para. 84.

Positions of the Parties [108] The plaintiffs submit that the events of November 30, 2014, were significant for Ms. Qu, and it should be assumed those matterswould have remained in her memory and thoughts ever since. On that basis, the plaintiffs submit that Ms. Qu’s memory of whathappened that day is likely superior to that of Dr. Rivera or Nurse Kempler. [109] With respect to Dr. Rivera, the plaintiffs submit that Dr. Rivera saw Ms. Qu a limited number of times on November 30, 2014,and not before or after. While she was aware that Ms. Qu had returned the next day (having seen her name on the board when Dr.

Riveraleft the hospital mid-morning on December 1, 2014), she did not follow up to see what had happened, and did not think of this matteragain until this action was commenced in November 2016. The plaintiffs note that Dr. Rivera would have seen hundreds of other patientsin the interim. The plaintiffs submit that it is unlikely Dr. Rivera would have a firm recollection with respect to one of many hundreds ofpatients. [110] The plaintiffs also note that some of the matters testified to by Dr. Rivera were not included in her Clinical Notes, or werereferenced only in a vague manner.

The plaintiffs submit that the Court should conclude that Dr. Rivera is, for the most part,reconstructing what she thinks should have happened. [111] With respect to Nurse Kempler, the plaintiffs note that Nurse Kempler was unaware of the lawsuit prior to the summer of 2023,and admitted that she had not thought about her dealings with Ms. Qu between the day they occurred and the summer of 2023—a periodof eight and a half years.

The plaintiffs submit that it is highly unlikely that Nurse Kempler has any true memory of the event, but ratherthat her evidence is a reconstruction as to what she thinks likely happened based on what she has been told, what is in her notes, and herstandard practice. The plaintiffs further submit that it is clear that Nurse Kempler has worked with Dr. Rivera for many years and likesand trusts her, and that her belief in Dr. Rivera has influenced her reconstruction of her memory as to the events that day. [112] The defendant submits that the evidence of Ms. Qu and of Dr.

Rivera is so different that it would be difficult to find a middleground. As a result, the reliability of their evidence is squarely in issue. [113] The defendant submits that Ms. Qu’s evidence lacked harmony with the more objective evidence. It departed in many materialrespects from what is recorded in the Clinical Notes, the Consultation Report, and the text messages that Dr. Rivera sent to Dr. Arkuran. [114] The defendant submits that Dr. Rivera’s evidence was internally consistent and corroborated by objective evidence, including themedical documentation and the text messages.

Analysis [115] I accept that the clinical records tendered at trial are an authentic record of what was recorded by Dr. Rivera and Nurse Kempleron November 30, 2014. That was not contested at trial. In my view, the clinical records (both handwritten and transcribed) are key toresolving the issues of conflicting evidence. [116] The Consultation Report, dictated shortly after Dr. Rivera’s discussion with Ms.

Qu, includes the following comments afterreferencing the risk of delivery within the next week and the short cervix: a) “She did not wish to address this type of concern today”, and b) “She became quite emotional when we discussed this earlier”. It goes on to reference an offer of inpatient observation and a discussion of the option of betamethasone. [117] Dr. Rivera’s text sent to Dr.

Arkuran shortly after she finished dictating the Consultation Report says, “No steroids today, ptcouldn’t handle the thought of possible preterm delivery.” [118] In my view, those contemporaneous comments are entirely inconsistent with Ms. Qu’s evidence, while confirming the substanceof Dr. Rivera’s evidence. [119] When giving her evidence, Dr. Rivera was clear as to what she did and did not recall. At times, she gave evidence as to her general

practice, while at times, she identified things that she specifically recalled. Her evidence was generally consistent with the various written records from the day. When dealing with the fact that she might have been able to determine from the November 19 Ultrasound Report that the gestational age was actually 25 weeks 1 day, she frankly acknowledged that she did not notice this. [ 120 ] The plaintiffs submit that Dr. Rivera’s explanation of her discussions with Ms. Qu is significantly more extensive than what is actually recorded.

I acknowledge that, in appropriate circumstances, the court can treat oral evidence from a medical practitioner that differs or adds significantly to an already detailed medical record or notation with caution : Gilmore at para. 56 . [ 121 ] That does not, in my view, require that hospital clinical records must contain, in effect, a transcript of any discussion between doctor and patient. The comments I have cited above, read in the context of the decisions facing a patient in Ms. Qu’s position (as discussed above under the heading Medical Context), are a concise

summary of the quandary faced by Dr. Rivera and Ms. Qu as they spoke at cross-purposes. They are sufficient to alert any subsequent medical practitioner treating Ms. Qu—either Dr. Arkuran or the obstetrician on call when Ms. Qu returned – to the critical issue that would have to be reviewed with Ms. Qu. [ 122 ] I also appreciate that Dr. Rivera would have seen many hundreds of patients since her interactions with Ms. Qu on November 30, 2014. However, I accept that Ms. Qu’s reaction to Dr.

Rivera’s efforts to engage her in a discussion of the critical decisions she had to be prepared to face was an unusual circumstance, and thus one that would stand out in Dr. Rivera’s memory. [ 123 ] While this was an important interaction in the context of Ms. Qu’s life, and thus potentially one that she might well remember, it is noteworthy that in the days, months, and years subsequent to November 30, 2014, Ms. Qu has herself had a significant number of interactions with doctors. [ 124 ] I was concerned during trial about whether Ms. Qu really fully understood the conversations that Dr.

Rivera was attempting to have with her. My concern was exacerbated by the fact that Ms. Qu was testifying in Mandarin, while at the same time insisting that her English language skills were good. That said, the uncontroverted evidence of all three of the key witnesses was that Ms. Qu functioned well in English, and that none of them had any concern at the time about her English language skills. In my view, I must accept that language issues did not interfere with Ms. Qu’s understanding of Dr. Rivera’s communications with her. [ 125 ] I will deal briefly with the evidence of Nurse Kempler.

The material part of her evidence reflects a second discussion with Ms. Qu about the merits of remaining in hospital for observation. It thus deals only with one part of the discussion that Dr. Rivera says she had with Ms. Qu. I was concerned about the certainty with which Nurse Kempler expressed her evidence, as distinct from the careful manner in which Dr. Rivera distinguished between those things she specifically remembers and those parts of her evidence that related to her standard practice.

I had some concern that there may have been some reconstruction (albeit inadvertent) on the part of Nurse Kempler, given that she acknowledged having given no thought to her dealings with Ms. Qu for over eight years. Given my conclusions as to the reliability of Dr. Rivera’s evidence, there is no need for me to resort to a more detailed analysis of Nurse Kempler’s evidence. [ 126 ] I agree with the parties that all of the key witnesses were doing their best to accurately recount the events of November 30, 2014, and as a result I should focus on reliability rather than credibility.

I also agree with the defendant’s submission that the evidence of Ms. Qu and Dr. Rivera is so different that it cannot be resolved. For the reasons I have discussed, I conclude that the evidence of Dr. Rivera is the more reliable evidence. Where Ms. Qu’s evidence differs from that of Dr. Rivera, I accept the evidence of Dr. Rivera. Standard of Care Expert Evidence on Standard of Care [ 127 ] Three expert witnesses gave evidence with respect to the standard of care: Dr. Hartman, who prepared a report at the instance of the plaintiffs; and Drs.

Dansereau and Kent, who prepared reports at the instance of the defendant. Dr. Hartman [ 128 ] Dr. Dennis Hartman is an obstetrician and gynecologist. His report is dated May 18, 2017. It thus predates commencement of this action, although he does appear to have had access to the hospital’s records with respect to the events of November 30 and December 1, 2014. [ 129 ] Dr. Hartman opined that the recommendation of bed rest with reduced activity was appropriate, and that this could be carried out in hospital or at home. He notes, however, that had Dr.

Rivera realized that the gestational age was actually 25 weeks and 1 day, rather than 23 weeks and 5 days, then “betamethasone could have been considered sooner and I suspect inpatient observation and management would have been recommended”. [ 130 ] As I read Dr. Hartman’s report, he assumed that no steroids were offered to Ms. Qu, and that this was because of the assumed gestational age of 23 weeks 5 days. [ 131 ] Dr. Hartman was not cross-examined on his report. Dr. Dansereau [ 132 ] Dr. Dansereau is an obstetrician and gynecologist with a subspecialty in maternal-fetal medicine (“MFM”).

MFM specialists have specific additional training with respect to dealing with high-risk maternity patients, including those at risk of premature labour. He prepared a report dated July 2, 2023, based on his review of the hospital’s clinical records as well as a set of factual assumptions provided to him by counsel for the defendant (the “Factual Assumptions”).

[ 133 ] Dr. Dansereau described the role of a physician dealing with a mother at risk of extreme preterm delivery in the range of 23–25 weeks as follows: The physician’s role would be to assess the risk of preterm birth. Then, to explain that risk and the consequences of prematurity at that early gestational age. Finally, she would present the management options available to mitigate the risks of poor outcomes. [ 134 ] Dr. Dansereau identified several management options and decisions that the patient would face, including:

a) The use of steroids to mature the fetal lungs in case of preterm birth;

b) Admission to a hospital for close observation and monitoring;

c) Consideration of a transfer to a tertiary hospital; and

d) A decision as to whether the patient wants active resuscitation or only comfort measures if the baby is born at that young age. [ 135 ] On cross-examination, it was put to Dr. Dansereau that betamethasone would do more than just mature the fetal lungs. He described steroids as having a “domino effect”, and said that when a newborn has good lungs, then all the organs and systems are well- supported. The kidneys, brain, heart, and bowels all benefit from having a good set of lungs. He agreed that the use of steroids can reduce the probability of a baby developing NEC. [ 136 ] With respect to Dr.

Dansereau’s latter comment, there was extensive expert evidence on the causation issue that delved into the nature and extent of the impact of a single dose of betamethasone shortly before birth. Because of my decision on standard of care, I will not review that evidence. I would note, however, that the potential impact of betamethasone on the development of NEC is a complex question as to which the experts who prepared reports focusing specifically on that issue did not agree. [ 137 ] On cross-examination, Dr.

Dansereau agreed that if there had been no attempt at discussing some of the topics he described, there would have been a breach of the standard of care. However, he made clear that the discussion to be had is really an art. It is not simply a matter of rolling through a checklist, and the receptiveness of the patient is an important factor. [ 138 ] The Factual Assumptions put to Dr. Dansereau stated, at para. 11, that: With a patient at risk for severe pre-term delivery, Dr. Rivera’s practice was to inform the patient about the range of possible outcomes and the options available.

Such a discussion would typically include providing the patient with an estimate of the risk the patient would have a pre-term delivery, an estimate of the baby’s survival prospects if that occurred, and a description of the possible complications the baby might experience if he or she survived. Of considerable importance, Dr. Rivera would also typically discuss the patient’s wishes for the possible resuscitation of the baby if he or she were born severely pre-term, and this would be tied to a discussion about the possible use of antenatal betamethasone. In Dr.

Rivera’s view, the patient’s decision about the possible use of antenatal betamethasone needed to be made in the context of her wishes about other aspects of care, including her wishes about possible resuscitation of the baby. Finally, Dr. Rivera would discuss the option for an inpatient admission so the patient could receive betamethasone if she elected to, and so she could be observed closely. [ 139 ] Dr.

Dansereau described the discussions outlined in this paragraph as “completely reasonable”, and went on to comment: That is what I would expect from a reasonably competent and careful obstetrician in that context.

In essence, what is described in paragraph 11 of the factual assumptions covers all the points and options described in the previous question. … Some aspects of that discussion are usually beyond the scope of practice of the average obstetrician and would also require the input of an MFM … and/or a neonatologist [a neonatologist is a pediatrician with a sub-specialization in the intensive care of premature or extremely sick neonates]. Most women are receptive to discussing the issues related to extreme prematurity.

In that case, a consultation with a tertiary care center would often follow the initial discussion with the obstetrician. However, the first step in this referral process is a discussion between the patient and the obstetrician. A refusal from the patient to engage in that discussion precludes moving forward toward a possible referral with the tertiary center. [ 140 ] On cross-examination, Dr. Dansereau was asked about the second of these paragraphs, and the point at which a specialist (MFM or neonatologist) is brought into the discussion.

He described the role of the obstetrician as being to initiate the discussion and to engage a patient in that discussion. The purpose of involving the specialists is to be able to answer questions that the patient may have with a more detailed understanding of the underlying facts and statistics. [ 141 ] Dr. Dansereau was then asked about whether, on the assumption that the patient had declined to engage in a discussion about the possibility of preterm delivery, it was reasonable for Dr.

Rivera to arrange for the patient to have a follow-up ultrasound in 48 hours, with instructions to return to hospital sooner with any recurrence of cramping, pain, or bleeding. Dr. Dansereau again described this approach as “completely reasonable”, stating: By their nature, those discussions are very emotional and difficult for all patients. They are bound to cause an enormous amount of distress and anxiety. Presumably, her previous pregnancy with a short cervix would have caused Ms. Qu a significant level of anxiety and stress.

In light of that experience where the risk did not realize, she may have perceived the discussion of short cervix and possible premature birth as excessively alarmist. In similar situations it has been my experience that some patients simply refuse to be concerned and decline discussing those risks (that they perceive as overrated and unnecessarily stressful).

Whether declining such discussion is based on denial, or not believing how serious the risks are, or for other various reasons (e.g. refusing to be separated from her toddler), one cannot force a patient to discuss uncomfortable topics or force them to consider unpleasant

realities or force them to accept treatments aimed at reducing the risks of poor outcomes. When a patient refuses to consider the risks or declines to engage in the discussion of her management options, the physician has no option but to respect that refusal and try to reach a compromise, while trying to mitigate the risks of poor outcomes. By organizing an early follow up 48 hours later, that is precisely what Dr. Rivera did. Dr.

Rivera demonstrated a careful management of a difficult situation in her attempt to optimize the chance of good outcomes, in a situation where her patient was declining a preferable approach (i.e. was refusing to engage in the discussion of risks and options). She did that by: • Organizing an early follow up. • Advising Ms. Qu on when to return to the hospital. • Dictating a plan of management for her colleagues. • Messaging her colleague providing regular care to Ms. Qu. Not only did that plan minimize the risk of poor outcomes, but implicitly, it would also have passed the message to Ms.

Qu that she was very concerned about the possibility of premature birth. It has also been my experience that many patients who initially refuse a discussion or a management plan, will slowly come to reason over the span of successive visits, when provided with a gentle but persistent guidance toward a safer management plan. By organizing a close follow up, Dr. Rivera implicitly encouraged Ms. Qu to reconsider her initial decision to decline discussing the risks of a premature birth and her options for management. Dr. Kent [ 142 ] Dr. Kent is also an obstetrician and gynecologist with an MFM subspecialty.

In 2014, she was practicing as an MFM at BC Women’s Hospital, and part of her practice at the time involved assessing and counselling women at risk of an extreme preterm delivery and delivering those babies. She was provided the same Factual Assumptions as Dr. Dansereau. Her report was dated July 6, 2023. [ 143 ] Dr. Kent described the standard of care applicable to Dr. Rivera’s treatment of Ms.

Qu as follows: In 2014 the standard of care in B.C. was to transfer women who remained at risk for preterm birth, with their consent, once they had reached 24+0 weeks to centres with neonatologists and NICUs for fuller discussions about newborn outcomes and further care as desired by an informed patient and her family. It was routine to administer antenatal corticosteroids to all women between 24+0 and 33+6 if transfer was arranged, implying a desire to proceed with full care for the newborn pending further decisions once they had been counselled by neonatology.

The most common corticosteroid was and is Betamethasone. Ideally it is given as 2 doses of 12 milligrams each 24 hours apart within 7 days of delivery. [ 144 ] Dr. Kent noted that a corticosteroid like betamethasone is known to improve neonatal outcomes, especially with respect to the ability of an infant to breathe on their own, and in particular for those born at gestational ages less than 28 weeks. [ 145 ] Like Dr. Dansereau, Dr. Kent was asked to comment on para. 11 of the Factual Assumptions regarding Dr. Rivera’s practice with a patient at risk for severe preterm delivery.

She opined that it was reasonable for Dr. Rivera to try to engage Ms. Qu in the sort of discussion posited, noting that there is a risk of preterm delivery in any patient presenting with threatened preterm labour or bleeding in pregnancy. Dr. Kent categorized the situation on November 30, 2014, as “threatened preterm labour” because there was no evidence of regular contractions and dilation or thinning of the cervix. She noted as well that “a short closed cervix on ultrasound on its own, without the contractions, does not predict preterm birth”. However, she opined that given what Dr.

Rivera had discovered, including the results of the ultrasound, Ms. Qu was at risk of preterm delivery. [ 146 ] In light of that risk, Dr. Kent opined that it was important for Dr. Rivera to offer the options of active resuscitation, and that seeking out the parental wishes with respect to resuscitation “needs to be broached early in the care of patients at risk for preterm birth” as preterm labour can occur without much warning.

She noted that: As timing of delivery with respect to the administration of the corticosteroid remains a challenge, it is appropriate to include it in a discussion of parental wishes for the care of their newborn once it has been decided by the caregiver that a risk of preterm birth is a real possibility. [ 147 ] Dr. Kent also opined that, although Ms. Qu had no further active bleeding when she was examined on November 30, 2014, and was thus “appropriately assessed as not progressing into preterm labour at that point in time”, it was reasonable to offer Ms. Qu admission for observation purposes.

While small amounts of bleeding are common, they can be a signal that further and heavier bleeding might occur. Thus, An inpatient admission would have allowed for closer monitoring of any further bleeding or cramping and an opportunity to reconsider antenatal corticosteroids and a maternal transfer should that occur. [ 148 ] With respect to the decision to discharge Ms. Qu, with instructions to return in two days or earlier if certain symptoms occurred, Dr.

Kent commented: It is common and reasonable to discharge patients who have settled down with no further bleeding or cramping over a period of several hours of observation and who are motivated to go home with clear instructions to return if there is any recurrence of pain, cramps or bleeding. [ 149 ] Dr. Kent also opined that having Ms. Qu return in two days for a follow-up ultrasound and assessment was appropriate, noting

that a shorter cervix on that ultrasound would have increased the concern for a preterm delivery and allowed a re-discussion of thepossibilities. She noted as well that Dr. Rivera’s Consultation Report would have informed the obstetrician on call two days later of Ms.Qu’s reluctance to consider antenatal corticosteroids thus “flagging the importance of reviewing this topic again” upon Ms. Qu’s return.

Legal Principles [150] The standard of care in a medical negligence action requires a physician to exercise the degree of skill and care of a prudent anddiligent physician in the same specialization as the defendant and in the same circumstances. As noted in ter Neuzen v. Korn, [1995] 3S.C.R. 674 at para. 33, [ter Neuzen]: It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor inthe same circumstances.

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed inlight of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected ofprofessionals in Canada, in that field.

A specialist, such as the respondent, who holds himself out as possessing a special degree of skilland knowledge, must exercise the degree of skill of an average specialist in his field …The conduct of a physician is to be judged in lightof the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence: ter Neuzen at para. 34. Aswell, the conduct is to be measured based on what the physician knew or should have known at the time, rather than with the benefit ofhindsight: Brimacombe v. Dr. J. David Mathews, 2001 BCCA 206 at paras. 80–81. As noted in O’Connor v.

Wambera, 2018 BCSC 886: [106] The dangers of evaluating a medical negligence allegation based on hindsight are well recognized as they tend to colour allaspects of the assessment of medical care and can influence the fair and reasonable assessment of that care. [107] In Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351 at 362–363, Madam Justice L’HeureuxDubé stated: As the judgment from Hôpital général de la région de l’Amiante indicates, courts should be careful not to rely upon the perfect visionafforded by hindsight.

In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future eventswhen determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of theaverage doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent onlyafter the fact. [151] In Sadlowski v.

Yeung, 2008 BCSC 456, the court summarized the applicable law with respect to a physician’s duty tocommunicate with a patient: [100] In obtaining consent of a patient for the performance of a procedure, a physician is generally required to disclose to the patient,without being questioned, the nature of the proposed treatment, its gravity, and any material, special or unusual risks involved: Hopp v.Lepp, (SCC), [1980] 2 S.C.R. 192. [101] The physician is required to discuss that which he knows or should know the patient deems relevant, the benefits to be gainedfrom the recommended treatment, the advantages and disadvantages associated with alternative procedures, if any, and the consequencesof foregoing treatment.

He or she must answer any specific questions posed by the patient: Van Mol (Guardian ad litem of) v. Ashmore,1999 BCCA 6. [102] The standard of disclosure is based on the perspective of a reasonable patient. The test is whether the physician disclosed to thepatient that which a reasonable person in the patient’s circumstances would want disclosed: Ellen I. Picard and Gerald B.Robertson, Legal Liability of Doctors and Hospitals in Canada, 3rd Ed. (Toronto: Carswell, 1996), p. 118; Ciarlariello v.

Schacter, (SCC), [1993] 2 S.C.R. 119, ¶34-35. [103] Related to the physician’s disclosure obligation is the obligation to ensure patient’s comprehension of the informationcommunicated: [54] Prior to Reibl v. Hughes, there was some doubt as to whether the doctor had the duty to ensure that he was understood.

However, Laskin C.J. made it quite clear in that case that it was incumbent on the doctor to make sure that he was understood,particularly where it appears that the patient had some difficulty with the language spoken by the doctor. [55] Indeed, it is appropriate that the burden should be placed on the doctor to show that the patient comprehended theexplanation and instructions given. [Ciarlariello, supra, ¶54, 55][Reibl v.

Hughes, (SCC), [1980] 2 S.C.R. 880] [104] The physician’s duty to “ensure” understanding does not mean that a physician is strictly liable in every case where the patientmisunderstands the information conveyed.

Picard & Robertson in Legal Liability of Doctors in Canada, supra, describe the standard asone of reasonableness: … To require a doctor in every case to ensure the patient understands the information, and to place the burden of proof on the doctor toestablish that this was done, seems far too onerous and impracticable a duty, especially in light of studies which indicate that manypatients do not understand (or remember) what doctors tell them.

The doctor should only be required to take reasonable steps to ensurethat the patient understands the information, and Justice Cory’s dictum in Ciarlariello should be interpreted accordingly. Exactly what constitutes “reasonable steps” in this context will, of course, depend on the particular circumstances of each case. [Picard & Robertson, Legal Liability of Doctors

and Hospitals in Canada, supra, p. 137] [105] In Byciuk v. Hollingsworth, the Alberta Court of Queen’s Bench agreed that it was too onerous to expect the doctor to literallyensure understanding in every situation. Instead, it is sufficient for the physician to take reasonable steps to ascertain whether the patientunderstood the message being conveyed. What are reasonable steps is determined by the circumstances of each case.

Where the patienthas a limited understanding of the English language, or has difficulty in comprehension by reason of infirmity or disability, thephysician’s burden of his duty to disclose is naturally higher: Byciuk v. Hollingsworth, 2004 ABQB 370, ¶33. [152] Infusing the opinions of both Dr. Dansereau and Dr. Kent, as well as the evidence of Dr. Rivera as to the conversation sheattempted to have with Ms. Qu, is respect for Ms.

Qu’s right as the patient to make decisions as to what is to happen to her unborn child.In Canadian common law, the right of a person to control his or her own body has long been recognized. This right of self-determinationis reflected in the law of informed consent, which requires a doctor recommending a medical procedure to first disclose the nature of theprocedure, any material risks and any special or unusual risk attendant upon the procedure: Liu v. Chuo, 2019 BCSC 109 at paras. 79–82.It also encompasses the right to refuse medical treatment: Malette v.

Shulman (1990), 72 O.R. (2d) 417 at 423–424, (C.A.) [Malette]. As stated in Malette at 424: A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even ifthe decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community.Regardless of the doctor's opinion, it is the patient who has the final say on whether to undergo the treatment.

Positions of the Parties [153] The plaintiffs submit that the applicable standard of care requires that, when a patient presents with a risk of preterm delivery, theobstetrician and gynecologist should discuss (or attempt to discuss) the issues of resuscitation, the potential use of antenatal steroids, andthe possibility of transfer to a tertiary care hospital. The plaintiffs submit that Dr. Rivera failed to do this. [154] The plaintiffs submit that Dr. Rivera had sufficient information at the time of her 11:35 am notation in the Clinical Notes that sheshould have had this discussion with Ms. Qu at that point.

Alternatively, the plaintiffs submit that these matter

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