Smartt v Brar, 2023 ABKB 4

Court of King’s Bench of Alberta Citation: Smartt v Brar, 2023 ABKB 4 Date: 20230106 Docket: 1501 05916 Registry: Calgary Between: Filip Smartt an Infant by his Litigation Representative Morana Grba, Morana Grba, Gairy Smartt and His Majesty the King In Right of Alberta Plaintiffs - and - Dr. Simrit Brar, Dr. Kelly Albrecht, Dr. Anne Roggensack, and Alberta Health Services Carrying on Business as the Foothills Medical Centre and the said Foothills Medical Centre Defendants _______________________________________________________ Reasons for Judgment of the Honourable Justice R.J.

Hall _______________________________________________________ [ 1 ] The Plaintiffs, Morana Grba and Gairy Smartt, are the parents of the Plaintiff, Filip Smartt, who is 8 years old at the time of the trial. Filip was born in 2014 at the Foothills Hospital. The Defendant, Dr. Kelly Albrecht, performed the delivery. She is an obstetrician and gynecologist. The action has been discontinued against all Defendants other than Dr. Albrecht. [ 2 ] The delivery was a mid forceps vaginal one. The baby’s shoulder got stuck behind the mother’s pubic bone. Dr.

Albrecht performed maneuvers to free the baby’s shoulder and Filip was delivered. However, Filip suffered a brachial plexus injury. Dr. Harrop

described it as a severe left obstetrical plexus traction type injury, of the most severe type, involving all 5 roots of the left brachial plexus. Filip therefore has a paralyzed left arm and hand, a condition which is expected to last throughout his lifetime. [ 3 ] The three Plaintiffs have sued Dr. Albrecht, maintaining that she did not properly inform Ms. Grba of the risks of the mid forceps delivery; she refused to carry out a Caesarian

section birth, even when asked by Ms. Grba to do so; she negligently advised and performed mid-forceps delivery; and/or she negligently conducted the delivery of Filip, causing the loss of use of his left arm and hand. [ 4 ] The Defendant, Dr. Albrecht, disputes these allegations. She maintains she fully discussed birthing options with Ms. Grba, explaining the benefits and risks of various forms of delivery; she offered Ms. Grba the option to have a Caesarian section, but Ms.

Grba chose the mid forceps delivery; and she properly performed the delivery without negligence. [ 5 ] The delivery was vaginal and a mid forceps delivery; meaning the Defendant doctor used specially designed forceps to reach into the birthing canal and affix the forceps such that they would grab each side of the head.

Then, as the mother pushed during a contraction the doctor would pull on the forceps to assist in getting the baby delivered. [ 6 ] The delivery notes, and the evidence of the Defendant, indicate the Defendant performed pulls during each of two contractions, which are described in her notes as involving moderate force. [ 7 ] Consequent upon the pulls during the two contractions, the baby’s head was delivered; however Filip’s shoulders were stuck behind the pubic bone and could not be delivered. The shoulder, or shoulders, being stuck, is known as shoulder dystocia. [ 8 ] After about a minute of Dr.

Albrecht’s efforts to rotate and release the baby’s left shoulder, the baby was delivered by Dr. Albrecht, then taken to the Neonatal Intensive Care Unit. [ 9 ] The baby’s weight at delivery was 3270 grams. The head size was described by all as a normal size for a 34 gestation week baby. The abdomen’s diameter was large. The size of the head and the abdomen were disclosed on an ultrasound report of December 30, 2013, taken at the Foothills Hospital. This ultrasound report was available for review on the chart in the delivery room. Its contents were known to Dr. Albrecht.

Evidence regarding Informed Consent [ 10 ] The Plaintiff Morana Grba, mother of Filip, gave evidence on the subject of informed consent. Her physician at the time of her pregnancy was Dr. Grainger. Ms. Grba was approximately 360 lbs. She had low platelet counts, and she had a history of high blood pressure. She was therefore referred to an obstetrician, Dr. Samrit Brar, her pregnancy being considered as “high risk”. [ 11 ] Ms. Grba says she was told by Dr. Brar that the baby, normally, would be delivered vaginally. She says she was told that, at that time, she could not choose a Caesarian

section delivery. [ 12 ] Ms. Grba’s water broke on December 29, 2013 and so she was admitted to the Foothills Hospital, where Dr. Brar had hospital privileges. At that time the duration of the pregnancy was 34 weeks; meaning the rupture of the membrane was premature. [ 13 ] Because the baby was to be born prematurely, a bed for the baby in the Neonatal Intensive Care Until (NICU) was required for the baby, once born. Ms. Grba was told there were no beds available in the NICU; accordingly she was being monitored, but labour was not being induced while the bed shortage continued. [ 14 ] Ms.

Grba remembers an ultrasound being performed on December 30, 2013. From that, she remembers being informed that the amniotic fluid level remained ok, and the baby was in the right position. [ 15 ] Ms. Grba recalls meeting Dr. Albrecht for the first time on December 31, 2013. Her recollection is that their discussions centered around antibiotics to counter a risk of infection, and discussion about Ms. Grba potentially being transferred to the South Health Campus in south Calgary because of the continuing shortage of NICU space at the Foothills Hospital. [ 16 ] On January 1, 2014 Ms.

Grba learned there was a bed available in NICU at Foothills Hospital for Filip, and so her labour could progress. She was moved to a delivery room. She called her husband to tell him. She was given oxytoxin to induce the birth. [ 17 ] The delivery did not occur that day. Ms. Grba was offered, and agreed to, the administration of an epidural anaesthetic. She was told either by a doctor or nurse that her labour was progressing. [ 18 ] Early in the morning of January 2 she was told by the resident doctor (Dr. Jim) that she was to start pushing during her contractions. [ 19 ] Ms.

Grba recounts that her husband Gairy and her mother, Bojdanka Grba, arrived at the hospital and stayed overnight from January 1, 2014 to January 2, 2014. They were in the delivery room with Ms. Grba. [ 20 ] Ms. Grba recalls there being a number of nurses in and out of the delivery room on January 2, 2014. She recalls that a bed was brought in for the NICU team to take Filip once he was born. [ 21 ] Ms. Grba recalls Dr. Dalton being in the room at some point that morning while Ms. Grba was pushing. Ms. Grba recalls no conversation with Dr. Dalton. [ 22 ] It is Ms. Grba’s recollection that a nurse called Dr.

Albrecht to the delivery room, and she came. [ 23 ] Ms. Grba’s recollection of discussions with Dr. Albrecht at that time is that Dr. Albrecht said “we have got to get this baby out

now.” Dr. Albrecht said she would gently use forceps to deliver the baby. Ms. Grba recalls her mother holding her head and shaking it side to side, as if to signal “No”. Ms. Grba says she then asked for a C-section to be performed, but Dr. Albrecht said it was too late, the baby was too far down. [ 24 ] In cross-examination Ms. Grba maintained that Dr. Brar had indicated she could not choose a Caesarian section; but she acknowledged stating, in her examination for discovery, that Dr. Brar never told her she could not have a Caesarian section. [ 25 ] Ms. Grba had a vague recollection of meeting Dr.

Birch, obstetrician, during her pregnancy. She does not recall if she told Dr. Birch she wanted a Caesarian section. [ 26 ] Dr. Roggensack, obstetrician, discussed the December 30, 2013 ultrasound with Ms. Grba. Ms. Grba’s impression was that everything was okay. [ 27 ] Dr. Brar attended Ms. Grba either December 30 or 31, according to Ms. Grba. Ms. Grba says there was no discussion of different methods of delivery with Dr. Brar at that time. [ 28 ] Ms. Grba denied that Dr.

Albrecht discussed with her the pros and cons of forceps delivery versus delivery by Caesarian section; or that she discussed risks to either her or her baby from each type of delivery. She denied being told by Dr. Albrecht about the risks in a forceps delivery, of the baby’s shoulder or shoulders getting stuck; she denied being told that, in such case there was a risk of musculo-skeletal injury, or fracture injury; or that it could result in possible asphyxia or death. She denied Dr.

Albrecht telling her that if forceps delivery wasn’t working, she would stop and go to a Caesarian section; and she denied that Dr. Albrecht gave her the option of a forceps delivery or a C-section. [ 29 ] Mr. Gairy Smartt, father of Filip, gave evidence regarding the exchange between Ms. Grba and Dr. Albrecht. [ 30 ] He says that, Morana called him to say space had become available at NICU, so she was being moved to a delivery room and being induced. He and Ms. Grba’s mother attended at the delivery room. They were there overnight. [ 31 ] Mr. Smartt recalls Dr.

Dalton in the delivery room, directing Morana how to push. Then “at some point”, he recalls Dr. Albrecht coming in. he says Dr. Albrecht said “this baby has to come out.” [ 32 ] He says, just before the delivery, Dr. Albrecht raised the forceps in her hand, and said she would use gentle forceps. He remembers his mother-in-law holding her head in her hands and shaking it, no. [ 33 ] He says that, at that point Morana asked for a Caesarian, but Dr. Albrecht said it was not an option. [ 34 ] His recollection is that Dr. Albrecht said “we have to get this baby out.” Morana said “Can I have a C-section?” Dr.

Albrecht said “we have to get this baby out” and that she would use gentle forceps. He says there was an atmosphere of urgency. He says after two attempts, the baby was delivered. [ 35 ] In cross-examination, Mr. Smartt said “it could be” that Dr. Albrecht preformed an internal examination. [ 36 ] He understood the urgency to be that Morana had been pushing for over 2.5 hours. [ 37 ] Mr. Smartt said he does not remember any conversation where Dr. Albrecht discussed options of a forceps delivery versus a Caesarian section, nor discussed the risks of each method.

He didn’t remember Morana’s epidural being refreshed; he doesn’t remember her bladder being emptied by catheter. [ 38 ] Ms. Bojdanka Grba, who is Morana’s mother, gave evidence. [ 39 ] She was in the delivery room overnight from January 1 to January 2. [ 40 ] She recalls Morana having painful contractions and being administered an eipidural. She remembers nurses in the morning telling Morana how to push and how to breathe. She recalls a doctor being sent for. She recalls a doctor doing a vaginal exam. [ 41 ] She remembers a doctor saying “this baby needs to come out”, “using gentle forceps”.

She remembers being concerned about that and putting her hands on her head and shaking “No”. [ 42 ] She remembers that Morana then asked for a C-section; but the doctor said it was too late. [ 43 ] She says, after that, it all happened fast, and the NICU team took the baby away. [ 44 ] In cross-examination Bojdanka Grba repeated that she heard no other discussion between Morana and the doctor who performed the delivery. [ 45 ] Dr. Albrecht gave evidence. She is an obstetrician and gynecologist and she performed the delivery of Filip. She worked as one of a team of obstetricians in a “call group”.

If she was on call, that is to say working in the Foothills Hospital, she would see to all patients of the group that were in hospital. In this way, Morana Grba became her patient. [ 46 ] Dr. Albrecht met Ms. Grba in the ante partum Unit 41 on December 31, 2013. Dr. Albrecht looked at the fetal heart rate, and acquainted herself with lab reports and ultrasound reports on Ms. Grba’s chart. She examined Ms. Grba externally. Dr. Albrecht does not recall any discussion at that point with Ms. Grba regarding how the delivery would be performed. [ 47 ] Dr.

Albrecht was again on call January 2, 2014 from 8:00 a.m. to 8:00 p.m. At about 9:10 a.m. on January 2, 2014 Dr. Dalton called her and said Ms. Grba was fully dilated and the baby had now rotated to “occiput anterior,” meaning that, when the mother was

lying on her back, the baby’s face was facing down. The pushing had resulted in the baby moving farther down the birth canal, such that the top of the skull had progressed 2 centimetres to a +1 centimeter position. The fetal heart rate was normal. Dr. Albrecht directed that they wait another hour. [ 48 ] Dr. Albrecht entered into the delivery room. Her evidence is she believes it was around 10:00 a.m. She reviewed Ms. Grba’s chart. She reintroduced herself and asked permission to do a vaginal exam, to which Ms. Grba agreed.

To perform this, she asked the nurse to remove part of the bed, and the birthing bar, and this was done. She performed a vaginal exam, putting her right hand inside the vagina and determining the labour had progressed to where the baby’s skull was now lower into the pelvis, at +2 centimeters when mother was pushing. The baby’s head was almost directly downward, but slightly to the mother’s right side. She noted the baby was descending on pushing. She removed her hand, took off her gloves and washed her hands. She remembers that, along with her and Ms. Grba in the delivery room, were Ms. Grba’s husband, Dr.

Dalton and at least one nurse, possibly two. [ 49 ] Dr. Albrecht’s testimony about the discussion that ensued, is as follows: (p 62 l 27 – p 65 l 33): Q Okay. And what did you tell Ms. Grba at that time? A I first told her what my examination findings were. Q And what was that? A I told her that she is -- the baby is ROA and it is at plus 1 station, but that it does move to plus 2 when she gives a push. I told her obviously that she was fully dilated and that I felt her pelvis was adequate. Q Okay. Anything else? A Of the examination? Q About what you told Ms. Grba.

A So I then told her -- because I remember her saying to me that she was very tired and I knew that Dr. Dalton had told me that, too. And so I then said to her, you know, I know that you're very tired, this has been very long labour, I don't think continuing to push and increasing your oxytocin is the right answer to helping you. So that was the first thing I said to her.

Then I went on to say there's two choices of how I can help you: the first is that I can try and help you through the vagina, what that means is that you have to push and I can apply forceps to your baby's head and while you're pushing I can gently add traction to the baby to try to help deliver the baby from below. I told her, as I tell all patients, I'm not a hero, I'm a tiny little person who can only effect a proper delivery with forceps because I do it with the right technique. I was well trained, I've done a lot of forceps in my life.

And I tell these patients all the same thing - I cannot pull a baby out, I can -- you have to push the baby out. I can simply add to what you're doing. And then I went through what are the risks of forceps to a mother and what are the risks of forceps to a baby. Q And what did you tell Ms. Grba about the risks of forceps to the mom and to the baby? A I told her that the risk of forceps is usually higher to the moms than it is to the baby with the risks being specifically like pelvic floor damage, so a tear or an episiotomy, sometimes a tear into the third degree or fourth degree area, so into the rectum.

I told her that sometimes women have incontinence and other problems with their pelvic floor after a forcep delivery. I then told her about the fetal risks of a forcep delivery and I told her that forceps are spoons that sit against the baby's face, that they are designed to mold with the baby's head to fit properly against the head and sit against the cheekbone. I told that the most common reason that a baby has an injury with forceps is that it has a scratch or a bruise to the cheek. Sometimes it can have a bruise or an injury to the superficial part of the eye. It could have a scalp laceration.

And then I told her very rarely forceps themselves can cause bleeding in the brain or bleeding in the tissues between the scalp and the brain. THE COURT: Very rarely bleeding in the brain and what? A Or between the scalp and the brain. I then told her that, specific to this situation, we know that this is a big baby and we know that there's a chance that you're going to have a shoulder dystocia which means that the shoulders are stuck and I have to do maneuvers to get the shoulders out to save the baby's life.

I told her we encounter this, we're trained to deal with this, and most times there's not a complication from that. But sometimes babies can have specifically muscle or nerve damage. I told her about a clavicle fracture, a humeral fracture, or a brachial plexus injury. And I told her that babies can also have hypoxia or death. I then told her that there's the option of a cesarian section. And in this setting, a cesarian

section is not an elective cesarian section, it's complicated. It's harder. This baby's scalp was all the way to her hymen. So although the bone of the head was at plus station, I physically would have to make an incision on the abdomen and then I would have to put my hand all the way through her abdomen, through her pelvis, down to the bottom of her vagina where the baby's head is, wrap my hand around that baby and bring it up into the uterus. I told her that the majority of the time this does not result in an injury to the baby but that it can happen. You can have significant

injury including like a skull fracture or bleeding in the brain. I told her that cesarian

section is usually more difficult for the mother, specifically risks of the anesthesia, bleeding or blood transfusion, damage to other structures around the uterus - the bladder, the bowel, the blood vessels. These things can all be damaged and that it's my job to fix them. I told her that in this specific situation, I was concerned that the uterus was tired, it was swollen, and there was a chance that it was going to tear down the side and have an extension that potentially was going to cause her to have more bleeding or an injury to her ureter, and that she might have to have a hysterectomy. Very rarely, people can die. Lastly, I told her that cesarian

section is an increased risk for blood clot in the leg so that she would get special socks that squeeze her leg and move her blood around. I told her that a cesarian

section will keep her in hospital for two to three days, she can't lift anything heavy, nothing more than 10 pounds for 6 weeks, and that she would have to call her insurance company to see when she's safe to drive. Q MS. MCMAHON: And was that the end of your discussion with Ms. Grba? A No. Q What did you do next? A I said -- I don't remember my exact words but I would've asked her something that would've confirmed she understood that information and then said, What do you guys think? What would you like to do? Q And what was her response? A "I would like to do forceps." Q Do you recall whether Ms.

Grba had any questions of you before -- before you proceeded with delivery? A I don't recall. Q I just want to go back. You said that you told Ms. Grba that there might be a tear or extension and that's in the context of C-section, what are you talking about there? A So when you do a cesarian

section in a labouring uterus, the uterus is swollen, it's edematous, and when you make the incision from side to side and you place your hand in, the baby is not right there, the baby is down in the pelvis. So you have to put your hand sometimes like this far down inside the patient to get the baby to come -- bring it back up. And in doing that, this incision that is up here and the baby is down low can actually tear down the side.

And that is what happens, is that it actually is like a physical extension into very important structures - the uterine artery which feeds the uterus and bleeds like crazy is right there, the ureter which is the connection from the kidney to the bladder sits right there, the bladder itself is right there. And so a tear like that can be very significant and have very significant consequences for a person later in life. Q And you said that you told Ms. Grba that in -- specifically in these circumstances there was a risk of shoulder dystocia. A I did. Q Why did you raise that to Ms. Grba specifically? A Ms.

Grba has an elevated BMI, she had, as I described, what I thought might've been undiagnosed diabetes, she had a baby that was large for gestational age, and all of those things are known to be associated with shoulder dystocia. Q Did you make any recommendation to Ms. Grba about one option over another? A I did not. Q Why is that? A I did not because both of these options were full of risk and challenging and it wasn't up to me to make that decision. What my job was, was to give her the information of the potential risks and benefits and let her decide what was the better option for her.

Q And do you recall whether or not Mr. Smartt, Ms. Grba's spouse, or any other family in the room having any questions when youwent through that consent process? A No, I don't recall any questions being raised. [50] Dr. Albrecht said that this discussion was a long one and took 5 to 10 minutes. [51] Dr. Elise Dalton was called to give evidence. She was the resident doctor on call with Dr. Albrecht on the day of theoccurrence. She said that, other than what was written by her on Ms. Grba’s chart, she had very little recollection. She did not recall theattempted forceps delivery or anything about it.

She did remember that Dr. Albrecht encountered shoulder dystocia and conductedmaneuvers to free the baby’s shoulders but she recalled no other details. [52] In particular, she was unable to confirm or refute any conversation between Dr. Albrecht and Ms. Grba about risks andalternatives. She stated she had no memory at all, as to whether any conversation took place. [53] The nurses’ notes of the events are in evidence. Neither party called any nurses to testify. The nurse’s notes are in evidenceunder the rule in Ares v Venner, (1970) (SCC), SCR 608. Informed Consent Assessment [54] If Dr.

Albrecht discussed the risks and alternatives with Ms. Grba, in the manner that she maintains she did, and offered herthe option of a forceps delivery or a Caesarian section, and if Ms. Grba then elected the forceps delivery, Dr. Albrecht has obtainedinformed consent in a complete textbook fashion. [55] However, if she did not do so, and instead advised Ms. Grba simply that “this baby has to come out”, and said she woulddeliver the baby using mid forceps, and told Ms.

Grba it was too late to choose a Caesarian section, she has failed to obtain informedconsent and thereby breached the standard of care of an obstetrician in this situation. Dr. Herer, the standard of care expert called by thedefence, confirmed this. [56] Dr. Albrecht gave evidence about the order in which things occurred. She noted that, first, she asked for the end of the bed tobe removed as well as the birthing bar. [57] The nurses’ notes record, at 10:20 “Dr. Albrecht in room to see patient and assess position of baby” and “birthing bar and endof bed to be removed.” [58] Dr.

Albrecht gave evidence that the birthing bar was removed at her request so she could conduct an internal exam. Shetestified she then put Ms. Grba’s feet in stirrups, put her hand inside the vagina to determine the placement of the baby’s head, and whatposition the head was in. She then removed her gloves and washed her hands. She then had the described conversation with Ms. Grba.Upon Ms. Grba electing a forceps delivery she asked that the anaesthetist be contacted to top up the epidural. [59] The nurses’ notes record the request to the anaesthetist was made at 10:26. [60] The timing does not work. Dr.

Albrecht cannot have had the end of the bed and the birthing bar removed, conducted a vaginalexamination, removed her gloves, washed her hands and had a 5 to 10 minute long conversation with Ms. Grba, all in the space of 6minutes. [61] The conversation could not have occurred after 10:26 since Dr.

Albrecht then contacted the head nurse to tell her she wouldbe proceeding with a forceps delivery, would need the operating room available in case she had to abort the forceps delivery, to get thethree person NICU team to the room, get her equipment to the ready, all before the forceps were applied, which is recorded to havehappened at 10:36; and in any event, it makes no sense to take these steps in preparation for a forceps delivery, and then have thediscussion with Ms.

Grba. [62] It must be acknowledged that the times recorded could be slightly off, in that the nurse wrote the note after the occurrence ofthe event being recorded; but the records by the nurse are quite detailed and complete, and, in the absence of evidence to the contrary,they are presumed to be accurate. [63] The nurses’ notes record the epidural topped up at 10:30, the first pull at 10:39 and the baby’s head out, shoulder stuck at10:40. The notes record an episiotomy performed at 10:41 and the baby born at 10:42. The placenta was delivered at 10:52. [64] At 11:00 Dr.

Albrecht makes her “delivery note” on the chart in the delivery room. [65] She records that forceps were used, through two contractions. She notes “difficult pull” and severe shoulder dystocia (herunderlining). She notes McRoberts maneuver, supra pubic pressure, Rubins maneuver and episiotomy. She also recorded, with anasterisk “counselled AGAINST future vag birth as severe dystocia with 34 wk infant!*”, [66] When questioned about her entry “difficult pull” Dr. Albrecht said she meant to write “difficult delivery”. [67] Nowhere in this handwritten delivery note did Dr.

Albrecht indicate that she had obtained informed consent to the procedure.Her evidence is that is because the note is intended to inform future caregivers what occurred medically. Plaintiffs’ counsel challengedher on that, saying the note of her counselling against future vaginal births was not such an ongoing care note.

[ 68 ] Dr. Albrecht says that, after making her handwritten delivery note she then dictated a delivery note, which would then be transcribed in type. That note is produced as Exhibit 3 Tab 10, page AC0360. [ 69 ] This delivery note has various headings, under which the doctor’s dictated response is entered by the typist. [ 70 ] Under the heading MOST RESPONSIBLE DIAGNOSIS is written “Severe fetal heart rate bradycardia for 8 minutes with minimal recovery to baseline.” The fetal heart rate monitor shows that such bradycardia did not occur. Dr.

Albrecht, who was dictating this note, could not explain why it was there. She agreed, however, that if such a thing had in fact occurred, it would require that the baby be immediately delivered by forceps. [ 71 ] Under the heading “Summary Note” Dr. Albrecht has written that Ms. Grba “also had diabetes”. No such diagnosis had ever been made. Dr. Albrecht said she felt in her heart that Ms. Grba had gestational diabetes. [ 72 ] Dr.

Albrecht wrote further under “Summary Note”: In light of the long duration of the 2 nd stage, we had a long discussion about operative delivery versus Caesarian section, risk of shoulder dystocia and PPH [post partem hemorrhage]. She was aware she needed delivery, and we elected to proceed with gentle forceps delivery, if there was no descent we would do a Caesarian section. Appropriate consent was obtained. [ 73 ] Dr. Albrecht went on to write that the forceps were “gently applied”; how the baby’s head was delivered with “moderate traction”. [ 74 ] Dr. Albrecht wrote as well that the infant had “poor tone”.

She explained that to mean the baby was flaccid, and not moving its extremities. In cross examination she admitted stating at her examination for discovery that she knew, before the baby was taken from the delivery room that the baby was not moving his left arm very well. [ 75 ] There is a heading “Complications” on the form being completed by dictation. Dr. Albrecht entered “None”. She maintained in her cross examination that she knew the baby’s left arm wasn’t moving, but she thought it would resolve over time, and not be a complication. [ 76 ] Dr. Albrecht states she did not review the note or sign it.

The indication on the report is that it was dictated on the delivery date, and transcribed at 12:21 p.m. that day. [ 77 ] Dr. Albrecht asked Dr. Brar to arrange a subsequent meeting between Dr. Albrecht and Ms. Grba and Mr. Smartt, and the meeting took place on January 20, 2014. Dr. Albrecht then prepared a note of the meeting, addressed “To whom it may concern”. In that note she indicates she reviewed the delivery; said it was a “very gentle delivery”.

This seems to conflict with her previously written notes of a “difficult pull” and the use of “moderate traction”. [ 78 ] In order for me to accept the evidence of Dr.

Albrecht, I have to overlook that the timing of the alleged informed consent discussion does not work with the charting; that when she wrote “difficult pull” she meant difficult delivery; that her omission to record on the chart that she obtained informed consent, was just that, an omission; even though she wrote down her post birth discussion. [ 79 ] I would have to conclude that the entry on the typed delivery note of “severe fetal heart rate bradycardia for 8 minutes” was not made by Dr. Albrecht; that Dr.

Albrecht reasonably did not consider there were any “complications”; that the note of informed consent discussion was not made up; that Dr. Albrecht having recorded that Ms. Grba had diabetes when in fact none was diagnosed, was recording of what she felt in her heart; and that she was not trying to deflect blame from herself in that note and in her subsequent meeting with Ms. Grba and Mr. Smartt which she had Dr. Brar set up for her. [ 80 ] I find that the nurses’ notes show Dr. Albrecht did not have a 5 to 10 minute discussion with Ms.

Grba as she alleges. [ 81 ] I find that during the forceps delivery, there was a difficult pull involved, and that Dr. Albrecht is now trying to downplay it. I find the absence in her chart note of reference to obtaining informed consent is not adequately explained. I find that the typewritten notes are an attempt to deflect blame, not only for the brachial plexus injury, but also to record an informed consent discussion that never took place. The whole tone of that note is aimed at deflecting blame. [ 82 ] I find the meeting with Ms. Grba and Mr.

Smartt and the note written to describe the meeting were intended again to deflect blame in an attempt to convince Ms. Grba and Mr. Smartt that Dr. Albrecht had done nothing wrong. [ 83 ] I find as a fact that Dr. Albrecht did not properly inform the Plaintiff Ms. Grba about the alternatives available of either a mid forceps delivery or a Caesarian section; she did not inform Ms. Grba about the risks of each alternative procedure to Ms. Grba and to her baby. [ 84 ] Further, I find that Ms. Grba asked Dr. Albrecht to perform a Caesarian section, rather than to deliver the baby using forceps, and Dr.

Albrecht refused to do so. [ 85 ] I accept the evidence of Ms. Morana Grba, Ms. Bojdanka Grba and Mr. Gairy Smartt as to what Dr. Albrecht told them, and as to Ms. Grba’s request for a Caesarian. [ 86 ] I reject the testimony of Dr. Albrecht regarding discussions that she alleges took place. Liability Analysis [ 87 ] As part of this cause of action the patient must establish a causal link between the doctor’s failure to obtain informed consent,

and the injury which occurred.

It must be shown that the doctor’s failure to provide the material information caused the patient’s injury.The Supreme Court of Canada in Reibl v Hughes, (1980) (SCC), 114 DLR (3d) 1 (S.C.C.) page 232 determined the testto be applied regarding causation is the “Modified Objective Test”: if the material information had been disclosed, would a reasonableperson in the patient’s position have declined the treatment?[1] [88] Where a treatment existed that was alternative to the one performed, and the doctor failed to disclose that alternative, theplaintiff must show that a reasonable patient in the patient’s position would have chosen the alternative; and there is an additionalcomponent to causation: would the damage have been avoided if the alternative had been chosen?[2] [89] Here I have accepted the Plaintiff’s evidence that, when faced with the prospect of a forceps delivery, Ms.

Grba asked to havea Caesarian performed, however Dr. Albrecht did not offer that alternative, saying it was too late. [90] The Plaintiffs’ expert, Dr. Wittmann, opined that there were multiple known risk factors in respect of a forceps delivery in thiscase. The mother was severely obese, at some 360 lbs.; she was 35 years old having her first baby; the baby was large; the ultrasoundshowed the baby to be asymmetrical, with a normal sized head but a large abdomen; the mother had low platelets and hypertension.

Heprovided his opinion that the most reasonable method of delivery in those circumstances was a Caesarian section. [91] To the contrary, the Defendant’s expert, Dr. Barrett, expressed the view that, as the baby was expected by the ultrasound to beapproximately 3400 grams the baby was not “macrosomic”; that is, it was not greater than 4000 grams. As such, there was no reason toconsider a Caesarian section. He was critical of Dr. Wittmann’s characterization of asymmetrical macromonia. [92] Dr.

Albrecht’s evidence was that she was aware the mother was 35 years old and this was her first baby; she was aware of theultrasound findings and the expected weight of the baby; she was aware that the mother was severely obese with a high body mass index;she felt, in her heart, the mother was diabetic; and she knew all of these to be risk factors for a shoulder dystocia arising during a midforceps delivery. She knew the only way to avoid a shoulder dystocia was to deliver the baby by Caesarian section. [93] If Ms.

Grba had been informed of the risks to her baby from a forceps delivery when compared to the risks to her baby from aCaesarian section, I am satisfied that she reasonably would have chosen the Caesarian section; indeed I have found that she indicated thatpreference before the forceps delivery attempt was undertaken. That, seen objectively, was a reasonable choice for her to make. Therewere risks to her personally, from either a forceps delivery or a Caesarian; but the risks to her baby were far more significant from aforceps delivery than from a Caesarian.

Defence counsel argues that choosing a Caesarian would have been unreasonable. But theDefendant’s own expert on the applicable standard of care was Dr. Elaine Herer, a very accomplished obstetrician gynecologist. Dr.Herer stated that, had Dr. Albrecht not offered a Caesarian

section she would not have met the requisite standard of care for anobstetrician. I take, from that, that it would have been reasonable for a person in Ms. Grba’s shoes to have chosen to have the babydelivered by a C-section, had that alternative been offered to her. [94] Defence counsel argues that no reasonable person, properly informed of the risks, would have chosen a Caesarian section.Why then does the defence expert maintain that the option of a Caesarian

section must be presented to the patient? Would the Damage have been avoided if a Caesarian sectionhad been chosen? [95] Dr. Barrett was called by the Defendant to give expert opinion evidence as to the cause of the brachial plexus injury in thiscase. Dr. Barrett’s thesis is, given the situation, it was not negligent for Dr. Albrecht to attempt a mid forceps delivery.

Further, given Dr.Albrecht’s evidence at examinations for discovery and the manner in which she described the forceps delivery attempt and thesubsequent maneuvers, she had acted appropriately and had not been negligent, nor breached the standard of care. [96] In a case of lack of informed consent, however, that is not the issue I must decide.

I must determine whether the mid forcepsdelivery attempt and subsequent maneuvers to overcome shoulder dystocia caused the injury; not whether they were negligentlyperformed. [97] In a case where there has been a lack of informed consent, the plaintiff need not show the procedure followed by the doctorwas negligently performed; just that it caused the injury complained of. [98] Dr. Barrett accepted, as true and accurate, Dr.

Albrecht’s description of the steps she took in delivering the baby by midforceps, the extreme shoulder dystocia that was experienced, and her description of the maneuvers she undertook to free the shoulderdystocia. Based on her descriptions, he concluded she had used the forceps correctly, had not exerted force, had recognized shoulderdystocia and had conducted all of the proper maneuvers to free the shoulder dystocia. Based again on Dr. Albrecht’s report of how shehad performed these steps, he concluded she had not breached the standard of care, and therefore was not negligent. [99] Dr.

Barrett also referenced a note by a NICU pediatrician who described the forceps delivery as “gentle”. However, it is notclear whether that pediatrician was recounting something he witnessed, or something he was told. He was not called as a witness at trial. [100] Dr. Barrrett, in my view, confused the question of causation with the question of negligence. Because he concluded Dr. Albrechthad not been negligent, he therefore concluded that the manner of delivery had not caused the injury. [101] Dr. Barrett did maintain that a study, upon which he relied, (Dr.

Robert Gherman et al, “Neonatal Brachial Plexus Palsy”)showed that 45% of all brachial plexus injuries occurred without shoulder dystocia. He acknowledged much controversy over thisfinding, including an expert on whose opinion he had also partly relied (Dr. Robert H. Allen) who wrote “The causal relationshipbetween shoulder dystocia and brachial plexus injuries has been established for at least 75 years”. Dr. Allen also noted “there is nearuniversal association of permanent injury with antecedent shoulder dystocia”.

[ 102 ] Dr. Barrett preferred the Gherman report which stated that “Even when the injury to brachial plexus was documented and lasting more than a year, 26 percent occurred in the absence of documented shoulder dystocia.” He did acknowledge that the maneuvers used to release the shoulder dystocia put strain on the brachial plexus, and despite the obstetrician’s best efforts, a brachial plexus injury may still result from these maneuvers. [ 103 ] Dr.

Barrett said he personally prefers to use the Wood’s Screw maneuver rather than the Rubin maneuver, because, unlike the Rubin maneuver, it does not cause any traction to the brachial plexus”; thereby acknowledging the Rubin’s maneuver does cause some traction to the brachial plexus. [ 104 ] From Dr.

Herer’s expert testimony on the standard of care related to the informed consent, I take this to be the reason why, in counselling the patient of the risks of a mid forceps delivery, the standard of care expected of an obstetrician is to advise the patient of the risk of shoulder dystocia resulting in a brachial plexus injury to the baby. [ 105 ] In the end result, I take from Dr. Barrett that: 1. If Dr. Albrecht performed as she says she did, she carried out the proper steps and did not breach the standard of care; 2. Shoulder dystocia is known to be a risk of a forceps delivery; 3.

Although not all brachial plexus injuries occur consequent upon shoulder dystocia, there is a known causal relationship between shoulder dystocia and brachial plexus injuries; 4. The brachial plexus injury was caused by the stretching of the nerves which was associated with the shoulder dystocia (p 14, l 16- 20); 5.

A c-section eliminates the risk of shoulder dystocia. [ 106 ] It is clear to me that a brachial plexus injury such as this, where there is a complete avulsion (tearing) of the brachial plexus nerves at the spinal cord, is not likely caused by maternal forces; ie intrauterine contractions and pushes by the mother. [ 107 ] A severe brachial plexus injury such as this most often occurs as a result of outside forces applied by the obstetrician, either in the pull of the forceps, or by the maneuvers used to free the baby’s shoulder dystocia.

This may happen even if the doctor uses the forceps appropriately and properly performs the maneuvers. To the extent that Dr. Barrett disputes this, I do not accept his opinion. [ 108 ] A Caesarian

section would have virtually negated the risk of a shoulder dystocia and a full avulsion brachial plexus injury, such as occurred here. [ 109 ] The cause of the injury need not be proven to a scientific certainty. I am satisfied, on the balance of probabilities, that this serious avulsion of the brachial plexus nerves was caused by the procedures carried out by Dr. Albrecht. Accordingly, I find Dr. Albrecht to be liable for damages caused by the injury to Filip. Damages [ 110 ] The injury to Filip is permanent. He will never have the use of his left arm and hand.

Future surgeries may be required to alleviate problems arising from the injury. [ 111 ] Having reviewed the case law referred to me by counsel, I fix general damages for pain and suffering and loss of amenities of life, at $150,000. [ 112 ] Filip has been diagnosed with Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactive Disorder (“ADHD”). Neither of these conditions were caused by the delivery; however, they are germane to the assessment of damages.

The intention in assessing of loss of earning capacity and future cost of care is to put the plaintiff into the same position he would have been, had the incident not occurred. Corollary to that is the adage that the defendant takes the plaintiff as she finds him.

Loss of Earning Capacity [ 113 ] Experts for each party have given their opinion evidence as to what Filip’s employment prospects were without the injury, and their opinion as to his prospects following the injury. [ 114 ] It is clear that the conditions of ASD and ADHD are expected to impair Filip’s earning potential. [ 115 ] His parents are both well educated and well employed. Filip is of average intelligence. Absent ASD and ADHD, I would have expected his earnings to be those of a typical Canadian university graduate. [ 116 ] However, ASD and ADHD limit that expectation.

I find that, because of ASD and ADHD, Filip would have been reasonably expected to achieve the income of a high school graduate, had the injury not occurred. [ 117 ] Because of the incident, that earning capacity has been reduced. It is obvious that many jobs open to a high school graduate will not be available to a high school graduate with only one useful arm. [ 118 ] Plaintiffs’ expert, Mr. Conway, has postulated that Filip is now competitively unemployable. I do not accept that opinion to be a reasonable one.

[ 119 ] Defence economics expert, Professor Hyatt, has postulated that, by virtue of ADHD alone, Filip’s earning abilities should be reduced by 48% relying on a study by Jason M. Fletcher to that effect. However, Professor Hyatt was directed by defence counsel not to consider pre incident earning capabilities beyond high school; thereby already reducing Filip’s earning capacity substantially for ADHD/ASD. To then discount the earning capacity by 48% would be a double counting of a discount for ADHD/ASD.

I do not, therefore, apply that deduction, as I have already reduced Filip’s earning capacity, because of ADHD/ASD, from that of a university graduate to that of a high school graduate. [ 120 ] According to the defence expert Professor Hyatt, the present value of the expected earnings of a high school graduate, who is Filip’s age, after applying positive and negative contingencies, is $2,025,206. I accept the valuation by Professor Hyatt. [ 121 ] No studies have been placed before me to show the effect of the loss of use of one arm on an individual’s earning capacity.

I therefore must use my best estimate of the effect of the injury on Filip’s future employment. [ 122 ] I find that Filip’s earning capacity, as a result of his injury, has been reduced by ¼. Therefore I assess Filip’s loss of earning capacity at $2,025,206 ÷ 4 = $506,302. [ 123 ] A claim has been made by the Plaintiffs that, because of the injury, Filip’s prospects for marriage have been adversely affected, and that he will therefore suffer a financial loss because he will be less likely to be able to share expenses. The calculation is nebulous and the assumptions made are doubtful and unproven.

As well, the calculation fails to take into account such things as the cost of a marriage break up. I consider this aspect of the claim has not been made out and I award nothing on this aspect of the claim. Cost of Future Care [ 124 ] Each of the parties called expert evidence on the cost of future care, and economic expert evidence, calculating out those costs, then bringing them to a present value.

The Plaintiffs’ experts postulate a loss on this heading of $494,952. [ 125 ] The defence experts postulate the value of cost of future care as much lower, at $41,819.99 to $63,934.38. [ 126 ] The majority of the difference between the values assessed arises from disagreement as to the amount of counselling Filip will require arising from his injury. There are some differences in opinion as well, as to whether some of the recommended counselling costs are occasioned, not by the injury, but by Filip’s ASD/ADHD issues. Some of the items and equipment recommended by the Plaintiffs’ cost of care expert, Ms.

Jeannie Earle, are contested by the Defendant’s cost of care expert Ms. Evelyne Pilger, as being unreasonable, or improperly priced. [ 127 ] Ms. Earle made her recommendations for future care, and costs of them for the Plaintiff; then Ms. Rathje, Plaintiffs’ economist, created a spreadsheet showing her calculated present values. For the defence, Ms. Pilger responded to Ms. Earle and commented upon each item listed; then Dr. Hyatt, economist, provided present values for each of Ms. Pilger’s recommendations. [ 128 ] The most significant differences between Ms. Earle’s recommendations and Ms.

Pilger’s are in the areas of counselling; neurophysiotherapy; occupational therapy, personal support training; recreational consultant; psychology and psycho emotional relapse. [ 129 ] I find Ms. Earle’s opinion as to the necessity of much of this counselling, with the frequency she suggests, is more than compensatory. Ms. Pilger’s review and reasons are generally more realistic in that regard. [ 130 ] I accept Ms. Pilger’s rationale, and the amounts calculated by Dr. Hyatt in his Table 3A in respect of Care Navigation, Neurophysiotherapy and Personal Support Training.

I have provided my own estimate of Recreation Consultant. [ 131 ] I have attached to these reasons a chart which contains my findings of the items which I have allowed, and the present values I accept. In some cases, I have chosen the value ascribed by either Plaintiffs’ or Defendant’s experts. In come cases I have used my own judgment. [ 132 ] I accept that the cost of Vyvanse is not recoverable, as it is used to control Filip’s ADHD, and not caused by the incident. [ 133 ] I consider Occupational Therapy to be justified as a cost of care, but not from age 18 to life’s end, as suggested by Ms. Earle.

I allow an initial assessment cost at $3,000.00 and then 10 annual sessions at $690.00 per session, from age 19 to age 29. [ 134 ] I have also allowed amounts in relation to Housekeeping Allowance and Home Maintenance. Clearly, Filip will require ongoing assistance in these areas because of his injury. However, I have applied my best judgment as to the value of these claims. [ 135 ] Where items are recommended by Ms. Earle that are designed for use by people with only one arm, I have allowed them.

Any such item that can lessen Filip’s difficulties from the injury, or enhance his quality of life to more closely resemble the quality of life of an uninjured person are reasonable and are allowed. [ 136 ] For the splint/brace claim, I allow $1,007.00 on the basis that splints or braces may be useful, though they have not been useful to date. The amount is intended to reflect 10 splints or braces over Filip’s lifetime. [ 137 ] Some of my changes may require recalculation by the economists.

If they can come to agreement on the calculation, I will endorse their totals; if not, counsel can refer the dispute to me for further adjudication. Tax Gross Up

[ 138 ] The future costs of care award is subject to a tax gross up, i.e. “the present value of annual income needed to pay the additional income tax that will be attracted by interest earned on the awards that Filip will receive for his future cost of care” (Rathje report, p 23). The amount of gross up is dependent on the amount awarded for future costs of care, but is also dependent on the loss of income award. [ 139 ] I leave it to the respective economists to perform new calculations.

Any dispute between them can be referred to me for adjudication. [ 140 ] The tax gross up will not be appropriate if this award is placed in a structured award as contemplated by s 19.1 of the Judicature Act . Either party may bring an application before me to authorize such a structured award. [ 141 ] If the parties cannot agree on costs, they may address me further. Heard on the 17 th day of October to the 4 th day of November and the 9 th day of November, 2022. Dated at the City of Calgary, Alberta this 6th day of January, 2023. R.J. Hall J.C.K.B.A.

Appearances: Derek Nash/Steven Breslauer – Law Fifty One LLP for the Plaintiffs Megan McMahon/Jessie Larter – Gowling WLG (Canada) LLP for the Defendants ALLOWED FUTURE COSTS OF CARE Description Initial Outlay Frequency Multiplier Allowed Present Value Vyvanse 0 Non prescription medication $50 32.94 $1,647

Care Navigation Assessment to age 12 then to age 18 at age 18 $158.56 $480.00 $240.00 $792.80 3.1961 5.1267 $1,534 $1,230 $ 793 Neurophysiotherapy $8,656 Occupational Therapy Initial $3,000 $3,000 Occupational Therapy $690 $6,900* Personal Training at age 16 at age 20 $758.56 $791.45 $759* $792* Recreation Consultant $560 Two times $1120* Exercise floor mat $39 5 years 33.0429 $259 Bicycle Adaptation $65 6.6984 $436 Psychology at age 10 at age 16 at age 26 $2,322.04 $2,000.60 $1,552.48 $2,322 $2,000 $1,552 Single handed soap dispensers $114.66 3.75 $430 Automatic toothpaste squeezer $20.99 3.75 $79 Long handled brush/comb $23.68 11.31 $268 Bath sponge/toe washer $12.59 32.94 $415 Clothing alterations $200 32.94 $6,588 Button hole /zipper puller $15.74 11.31 $178 Long handled shoe horn $24.10 6.99 $168 Splint/Brace $107.90 10.00 $1,079 Housekeeping allowance age 18 to 28 then to age 45 then to age 75 $1,029.87 $1,429.31 $1,029.87 6.9943 8.4460 7.8405 $7,203 $12,071 $8,074 Home Maintenance -Additional to Housekeeping $600 17.85 $10,710 Hands Free Can Opener $27.29 3.97 $108 One handed grab opener $55.71 2.15 $120 Rocker knife $67.62 1.25 $85 Electric peeler $51.54 2.15 $111 Scoop dishes $57.54 2.15 $124 One handed paring board $301.68 2.15 $649 Dysem Non Slip Matcha $47.44 3.97 $188 Power Grip $75.90 6.99 $531 One handed gaming keyboard $66.14 6.99 $462 Book stand $38.80 3.75 $146 Transportation Allowance $435.00 8.3228 $3620 Wall grab bars $36.00 2.15 $78 Bathtub grab bar $22.00 3.75 $83 Medic Alert Membership ID $199 Driving Instruction Assessment Lessons $175.05 $157.55 $175 $157 Vehicle Adaptation $150.00 24.9052 $3,736

Vocational Support Assessment Counselling High School $1,016.22 $3,600 0.76 $1,016 $2,745 Interventions 0 Tutor 0 TOTAL $94,596 *Asterisked items have not been present valued