) ) TS v. AY, 2017 ONSC 397

CITATION : TS v. Adey, 2017 ONSC 397 COURT FILE NO.: 6484/12 DATE: August 16, 2017 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) TS and AY Plaintiffs – and – Christopher Karl Adey and Bradley Jasey Defendants ) ) ) ) ) ))) ) ) ) B. Legate and D. Hynes, for the Plaintiffs M. Royce, M.J. Lilles and D. Glatt, for the Defendants )) ) HEARD: November 21, 22, 23, 24 and 25, 28, 29 and 30, December 1, 2, 5, 7, 8 and 9, 13, 14, 2016 LEITCH J. THE CLAIM ... 3 ISSUES . 3 THE RELEVANT LEGAL PRINCIPLES . 4 FACTS . 9 The plaintiffs . 9 The defendants . 10 (

i) Dr. Bradley Jasey . 10 (ii) The functioning of Dr. Jasey’s obstetrical clinic . 10 (iii) Dr. Christopher Adey . 11 (iv) The functioning of Dr. Adey’s practice . 11 The health practitioners who treated TS . 12 (

i) Dr. Jordan Schmidt 12 (ii) Dr. Jack Jung . 12 The expert witnesses retained by the plaintiffs . 13 (

i) Dr. Jon Barrett 13 (ii) Dr. Walter Romano . 13 (iii) Dr. George Arnold . 14 The expert witnesses retained by the defendants . 15 (

i) Dr. Michael Shannon . 15 (ii) Dr. Edward Lougheed . 16 The birth of baby girl S, […], 2010 and baby boy S, […], 2012 . 17 The initial involvement of Dr. Kuprowski 19

The first trimester ultrasound—November 5, 2009 . 20 The December 22, 2009 appointment with Dr. Jasey . 20 The maternal serum screen—December 2009 . 23 The January 19, 2010 appointment with Dr. Jasey . 23 The January 27, 2010 second trimester ultrasound performed on TS . 24 Dr. Adey’s report on the January 27, 2010 ultrasound . 28 Confirmation that the contents of Dr. Adey’s report meet the standard of practice . 31 Dr. Adey’s communication of his findings to Dr. Jasey . 31 The February 16, 2010 appointment with Dr. Jasey . 32 Dr. Jasey’s concession regarding his receipt of Dr.

Adey’s report on the January 27, 2010 ultrasound . 32 Dr. Jasey’s review of the January 27, 2010 ultrasound on February 17, 2010 and his requisition of a follow-up ultrasound 34 The follow-up ultrasound March 10, 2010 . 35 TS’ appointment with Dr. Jasey March 16, 2010 . 36 TS’ appointment at the Fetal Development Clinic March 23, 2010 at 28 weeks’ gestation . 38 ANALYSIS . 41 (

a) Standard of Care . 41 (

i) Did Dr. Adey’s communication of his report on the January 27, 2010 ultrasound meet the required standard of care? . 41 (ii) Did Dr. Jasey meet the required standard of care in his review of the January 27, 2010 ultrasound and his care of TS thereafter? . 52 (

b) Causation . 64 (

i) But for the actions of Dr. Adey and Dr. Jasey, would a reasonable patient in TS’ circumstances have elected to terminate the pregnancy? . 64 (

c) Mitigation . 86 (

i) Did TS have a duty to mitigate by terminating the pregnancy at a later stage when she became aware of the condition of her baby? . 86 CONCLUSION .. 87 THE CLAIM [ 1 ] The plaintiffs are the parents of a child who has a SALL4 gene mutation. Their child has no thumbs; her left arm is very short and is mainly just tissue and fingers tucked up close to her body; and, her right arm is short with her elbow and wrist fixed in position. [ 2 ] The plaintiffs make claims of negligence against the defendants, Dr.

Adey, a community radiologist who performed two obstetrical ultrasounds on TS (most significantly one on January 27, 2010), and Dr. Jasey, a community obstetrician who provided prenatal care to TS up to March 31, 2010. [ 3 ] In brief, the plaintiffs allege that Dr. Adey did not clearly communicate his findings of the January 27, 2010 ultrasound, an acknowledged key ultrasound, in an appropriate way and that Dr. Jasey did not review the results of the ultrasound or advise TS of the concerns raised by the ultrasound in a timely manner. The plaintiffs allege that Dr. Jasey and Dr.

Adey did not ensure that the plaintiffs were provided an opportunity to act on the ultrasound and choose to electively terminate the pregnancy. [ 4 ] Originally, the plaintiffs also advanced a claim against Dr. Gary Kuprowski, TS’ family doctor; CML Health Care Inc. (“CML”), the facility where a number of ultrasounds were performed on TS; and Windsor Regional Hospital. As a result of minutes of settlement entered into prior to trial, the action and all cross-claims were dismissed as against these original defendants.

It was agreed in the minutes of settlement that no evidence would be led and no position would be expressed, at trial or thereafter, that these original defendants were negligent or caused or contributed to the harm or damages sustained by the plaintiffs. [ 5 ] Prior to trial, the parties agreed upon the amount of damages to be paid to the plaintiffs if either or both of the defendants are found to be liable.

ISSUES [6] The following questions are the issues to be decided. (

a) Standard of Care (

i) Did Dr. Adey’s communication of his report on the January 27, 2010 ultrasound meet the required standard of care? (ii) Did Dr. Jasey meet the required standard of care in his review of the January 27, 2010 ultrasound and his care of TSthereafter? (

b) Causation (

i) But for the actions of Dr. Adey and Dr. Jasey, would a reasonable person in TS’ circumstances have elected to terminatethe pregnancy? (

c) Mitigation (

i) Does the duty to mitigate extend to terminating the pregnancy at a later stage when TS became aware of the condition of her baby? THE RELEVANT LEGAL PRINCIPLES [7] Counsel prepared a joint statement of law which sets out the established legal principles I have applied to the issues in thisaction, including the following: (

a) in relation to the standard of care: (

i) as stated by the Ontario Court of Appeal in Crits v. Sylvester, (ON CA), [1956] O.R. 132, at 143 (C.A.), aff’d (SCC), [1956] S.C.R. 991, every medical practitioner must bring to his task a reasonable degree of skill and knowledgeand must exercise a reasonable degree of care.

He is bound to exercise that degree of care and skill which could reasonably be expectedof a normal, prudent practitioner of the same experience and standing; (ii) further as set out in Crits at 142, if a medical practitioner holds himself out as a specialist, a higher degree of skill is required ofhim than one who does not profess to be qualified by special training and ability; (iii) physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the samecircumstances; (iv) a specialist who holds himself out as possessing a special degree of skill and knowledge must exercise the degree of skill of anaverage specialist in his field: see ter Neuzen v.

Korn, (SCC), [1995] 3 SCR 674 at para 33; (

v) the relevant standard of care is a standard of care at the time of the alleged negligence: see ter Neuzen, at para 34; (vi) courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with the prevailing standards ofprofessional knowledge: see ter Neuzen, at para 34; (vii) although it is easy to be wise after an event, and to start from the result and work backwards to find negligence, the court shouldbe on its guard against this, especially in cases against doctors: see Crits at 143–144; (viii) the plaintiff has a significant onus to demonstrate that any lapse is more than an error in judgment and that it rises up to the levelof unskillfulness, carelessness, or lack of knowledge: see Stell v.

Obedkoff (2000), 100 A.C.W.S. (3d) 703 at paras 203–204 (Ont. Sup.Ct.); (ix) an error of judgment does not amount to negligence where the physician appropriately applies clinical judgment: see Wilson v.Swanson, (SCC), [1956] S.C.R. 804 at 812. (

x) in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a physician is not negligentmerely because his or her conclusion differs from that of other professional men and women: see Stell at paras 203–204); (xi) the duty to refer involves a physician’s judgment, and the court will examine the grounds on which that judgment is exercised.This includes if the physician is unable to diagnose the patient’s condition and if the patient needs treatment which the physician is notcompetent to give, among others: see Crawford (Litigation guardian of) v.

Penney (2003), 119 A.C.W.S. (3d) 843 at para 230(Ont. Sup.Ct.), aff’d 134 A.C.W.S. (3d) 719, (Ont. C.A.), leave to appeal to SCC dismissed [2004] S.C.C.A. No. 496; (xii) a doctor, who treats a patient in accordance with a respectable body of medical opinion, even if it is a minority opinion, will notnormally be held liable in negligence. A judge’s preference for one body of distinguished professional opinion over another is notsufficient to establish negligence in a physician whose actions have received the seal of approval of those whose opinions, truthfullyexpressed and honestly held, were not preferred.

Liability in negligence requires a finding of the failure to exercise the ordinary skill of adoctor (in the appropriate specialty, if he is a specialist): see Maynard v. West Midlands R.H.A., [1985] 1 All E.R. 635 (U.K. H.L.) at639; and C. (H.) v. Waxman (1990), 19 A.C.W.S. (3d) 444 at paras 42–43 (Ont. H.C.); (xiii) the dominant approach in the Canadian common law is to treat an expert’s independence and partiality as bearing on both the

weight given to the evidence and, in certain circumstances, on its admissibility: see White Burgess Longill v. Abbott and Haliburton Co,2015 SCC 23 at paras 39, 40, 45, [2015] 2 SCR 182; and (xiv) the factors to be considered in weighing and assessing conflicting medical testimony include: (

a) the relevance of the training, experience, and specialty of the witness to the medical issues before the court; (

b) whether the medical standard propounded reflects the standard of the great majority of medical practitioners in the field in question; (

c) any reason for the witness to be less than partial; and (

d) whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial: seeConn v. Darcel, 2013 ONSC 5080 at para 114, 230 A.C.W.S. (3d) 1215. (

b) in relation to causation: (

i) wrongful birth as a cause of action includes claims instituted by parents of a child who was born with birth defects. Theliability case is framed as “but for the negligence we wouldn’t have had the child”: see Paxton v. Ramji (2006), (ONSC), 146 A.C.W.S. (3d) 913 at para 156 (Ont. Sup. Ct.); Arndt v. Smith, (SCC), [1997] 2 S.C.R. 539; and Krangle(Guardian ad litem of) v.

Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205. (ii) causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injuryto the victim in order to justify compensation to the latter out of the pocket of the former.

If a defendant breaches his or her duty causinginjury to the plaintiff, the law requires the defendant to compensate the plaintiff for the losses suffered as a result of the defendant’sconduct; (iii) in a medical malpractice action, the plaintiff is required to prove that the treatment provided breached the standard of care andthat it was causally connected with the injury in question. The plaintiff bears the burden of showing that “but for” the negligent act oromission of each defendant, the injury would not have occurred: see Resurfice Corp. v.

Hanke, 2007 SCC 7 at para 21, [2007] 1 S.C.R.333. (iv) the determination of causation requires the application of the modified objective test: a consideration of what a reasonablepatient in the plaintiffs’ circumstances would have done if faced with the same situation. The court considers the subjective experienceof the plaintiff at the time the decision was made in conjunction with the reasonableness of her decision in light of the circumstances andmedical advice provided to her: see Arndt, at paras 42, 44. (

v) the “but for” test is a factual inquiry and must be applied in a robust, common sense fashion: see Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at para 14; Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at paras 7, 8–9, [2012] 2S.C.R. 181; Snell v. Ferrell, (SCC), [1990] 2 SCR 311 at 323–324, 330; (vi) where the plaintiff alleges delayed treatment, the “but for” test requires the plaintiff to prove the delay caused or contributed tothe unfavourable outcome.

Proof that meeting the standard of care would have afforded a chance to avoid the outcome is not sufficient; itmust be proven that adequate treatment more likely than not would have avoided the eventual outcome. “Loss of chance” is notcompensable: see Cottrelle v. Gerard (2003), (ON CA), 67 O.R. (3d) 737 at para 25 (Ont. C.A.); Resurfice at para23; and (vii) the plaintiff’s burden of proof will not be satisfied where the evidence leaves important questions unanswered with respect towhat treatment decisions may have been made under different theoretical circumstances: see Ratz v.

Desa, 2015 ONSC 7745 at para 222,262 A.C.W.S. (3d) 793. (

c) in relation to mitigation: (

i) the plaintiff has an obligation to mitigate damages by taking reasonable steps toward medical treatment and rehabilitation.The reasonableness of those steps is not judged against a standard of perfection, it is judged relative to what a reasonable person woulddo in the circumstances: see Cartner v. Burlington (City) (2008), 168 A.C.W.S. (3D) 1114 at para 99 (Ont. Sup. Ct.); and (ii) mitigation in a wrongful birth case is assessed on the standard of a reasonable person in the position of the plaintiff, basedon the evidence.

The trier of fact will decide the probable reaction of an ordinary reasonable woman by relying on reasonable inferencesfrom the evidence, including the evidence of the plaintiff herself: see Fredette v. Wiebe (1986), (BC SC), 29 D.L.R.(4th) 534 (B.C. S.C.). The court must apply an objective test to assess the reasonableness of a plaintiff’s conduct. [8] As the defendants emphasize, the standard of care is not a “standard of perfection”. It is important to pay attention to theevidence of the experts with respect to the question of the standard of care.

In evaluating the conduct of the defendants, their conductmust not be viewed through the lens of hindsight; reasonable and competent physicians can disagree about a particular clinical situation;an error in judgment is not in and of itself a negligent act; and an error in judgment has long been distinguished from

an act ofunskillfulness or carelessness and from

an act due to lack of knowledge: see Wilson at 812. [9] The defendants also note that to the extent that an expert testifies to what he himself would do in a situation, rather than whatthe standard of care requires, his testimony does not establish the standard of care nor does it demonstrate the defendant doctor breachedthe standard of care: see Bafaro v. Dowd (2008), 169 A.C.W.S. (3d) 437 at para 36 (Ont. Sup.

Ct.). [10] As the defendants also set out in their statement of law, opinions on the standard of care given by a specialist may be acceptedwhere the specialist’s experience overlaps with the standard of care of a general practitioner. If a specialist testifies that a non-specialisthas met the standard of care in the specialist’s area of expertise, it follows that the defendant physician has met the standard of a care of a

non-specialist. However, where a specialist criticizes the standard of care of a generalist, the court must approach this opinion withcaution. The courts have warned that such criticisms will “inevitably be coloured and determined by [the experts’] specialty”: see Lee v.Lee, 2015 ONSC 7509 at paras 60–61, 261 A.C.W.S. (3d) 219. [11] The plaintiffs emphasize that the standard of care must be responsive to the risk of harm, which they submit is the loss of theright to choose elective termination of pregnancy in Ontario. They rely on the Supreme Court of Canada statement in Ediger v.

Johnston,2013 SCC 18 at para 49, [2013] 2 S.C.R. 98 that a physician is required to take precautions in a patient’s care that are responsive to therisks imposed on the patient. [12] The plaintiffs also highlight the following component of the duty of care described in Crawford at para 230: The duty to refer a patient to another physician in a timely fashion where the attending physician cannot, him/herself, make a diagnosisor where he/she has a reasonable doubt concerning the correctness of the diagnosis; – in coming to a diagnosis, the physician must, asaforesaid, conduct a thorough patient history and conduct the necessary tests.

Where, however, the physician cannot make a diagnosis orencounters difficulty in making a diagnosis, he/she must refer the patient to a physician possessing expertise in the area in question. [13] As emphasized by the plaintiffs, a patient is entitled to know, and physicians are required to disclose, the risks involved inundergoing or foregoing medical treatment to ensure the patient can make informed decisions regarding their health care: see Arndt;Brisco. [14] In Ontario, the Health Care Consent Act, 1996 S.O. 1996 c. 2,

Schedule A, ss.10–11, sets out the requirements regardingconsent to medical treatment. The plaintiffs highlight that informed consent requires that a patient receive information about alternativecourses of action. [15] As a general rule, a medical practitioner must disclose the nature of the proposed treatment; its gravity; any material, specialor unusual risks involved; and the availability of alternative options: see Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880 at884; Van Dyke v. Grey Bruce Regional Health Centre (2005), (ON CA), 197 O.A.C. 336 at para 67 (Ont.

C.A.).Further, there is an obligation to ensure that the patient understands the information provided: see Ciarlariello v. Schacter, [1993] 2S.C.R. 111 at 140. [16] The plaintiffs acknowledge that they bear the onus of satisfying the court that a reasonable person in the circumstances of TSwould have made a different choice in treatment if provided with the information: see Arndt at paras 36, 41. What would a reasonablepatient have done in the circumstances of TS if the defendants had not been negligent?

The plaintiffs concede they must prove that butfor the defendants’ negligence it is more likely than not that they would have terminated their pregnancy by an elective termination inOntario. [17] The plaintiffs acknowledge that they have a duty to mitigate damages; that underlying the duty to mitigate is the notion that aninjured party may not increase his or her damages by unreasonable conduct and plaintiffs are bound to act with the defendants’ interestsin mind as well as their own.

The issue then arises of whether the duty to mitigate extends to terminating the pregnancy at a later stagewhen she becomes aware of the condition of her baby. FACTS The plaintiffs [18] TS was born […], 1983 and grew up in Windsor, Ontario. She lived in her parents’ home until she was aged 22, when herparents lost their home because of their financial circumstances. Her parents then moved to Chatham where her mother managed aseasonal campground.

Her father was unable to return to work after being injured and suffered from severe depression. [19] After her parents moved to Chatham in 2005, TS rented a one-bedroom apartment in Windsor and worked at Walmart tosupport herself. [20] In 2007, TS enrolled in a pre-nursing program at St. Clair College. She completed the first year of practical nursing in2008/2009. She intended to complete the last year of the two-year diploma program in 2009/2010 and then apply to a “bridging program”to obtain her RN. Although her community college program was full-time, she continued to work part-time at Walmart.

She had studentloans that she was responsible for and her parents were not in a position to provide any financial support. TS’ only asset was a 1998Sebring vehicle. [21] TS met her fellow employee, AY, at Walmart. Around June 2009, about a year after they met, their relationship evolved into aromantic one. AY was attracted to TS because she was very friendly but, in particular, because she was eager, motivated, and ambitious.He described her as a shy, passive, and non-confrontational person who would never cause a scene. [22] In late August 2009, TS believed she was pregnant.

After taking an at-home pregnancy test, she made an appointment withDr. Kuprowski who confirmed her pregnancy. Her mother was the first person she told about the pregnancy and AY was the second. AYreceived the news better than she expected. She thought AY would find her news stressful because the pregnancy was unplanned, theirrelationship was new, and he was starting a new job in Toronto where he had just moved to live with two roommates to save expenses.He had paid off his student loans and his expenses to attend Police College.

His only asset was an older vehicle. [23] Although AY was shocked and surprised when he learned that TS was pregnant, he was happy with the news and confidentthey could make it work. He considered himself mature and old enough to be a father at age 32. He described TS as having similarfeelings and being confident she could continue her schooling and pursue her goals even though she had a lot of stress in her life, inaddition to school and work responsibilities and the challenges of her financial circumstances.

[ 24 ] In the fall of 2009, TS’ father attempted suicide and thereafter her mother was, as TS put it, “a wreck”. TS spoke to her mother daily and provided support to her. Perhaps because of these stressors, TS failed a key course during the 2009 fall term, which put in jeopardy her ability to continue in her program. TS filed an appeal, which required her to participate in a hearing in early January 2010. Fortunately, she ultimately learned that her appeal was successful. The defendants (

i) Dr. Bradley Jasey [ 25 ] Dr. Jasey graduated from medical school in 1995, completed his post-graduate residency training in obstetrics and gynecology in the following five years and became a fellow of the Royal College of Physicians and Surgeons of Canada in 2000. Since that time, he has served as a staff obstetrician-gynecologist at Windsor Regional Hospital. He has served on a number of hospital administrative committees and since 2004 has held academic positions at the Windsor Campus, Western University, Schulich School of Medicine. [ 26 ] While he was a resident at St.

Joseph’s Health Care Centre in London, Ontario, he did rotations through the Fetal Development Clinic where he referred TS, as I will discuss further in these reasons. [ 27 ] In 2010, 50 percent of Dr. Jasey’s practice was obstetrics and he estimated that he delivered about 400 babies each year. He was a very busy, well-patronized obstetrician in the Windsor community.

His records for the days TS had appointments reveal that fact: on December 22, 2009 he saw 45 patients (including six new patients) and performed a caesarian section, and while on-call after hours, he saw two patients and delivered a baby; on January 19, 2010 he saw 54 patients and performed two caesarean sections, and while on- call after hours, he saw 12 patients; on February 16, 2010 he saw 64 patients, performed one caesarean

section and a delivered a baby, and while on-call after hours, he saw 12 patients; and on March 16, 2010 he saw 55 patients, and while on-call after hours, he saw one patient. (ii) The functioning of Dr. Jasey’s obstetrical clinic [ 28 ] Ms. Sandra Lauzon, a 27-year clerical staff employee at Windsor Regional Hospital, was the ward clerk in the obstetrical clinic in 2009/2010. She and a registered nurse worked in the obstetrical clinic each day from 8:00 a.m. until 4:00 p.m. and took a lunch break from 12:00 until 1:00 p.m. There was a different obstetrician responsible for the clinic each day. On Tuesdays, Dr.

Jasey was in the clinic. [ 29 ] Obstetrical patients would be admitted through the hospital admitting department and given paperwork which they then would deliver to Ms. Lauzon for insertion into the doctor’s chart and the hospital’s file. [ 30 ] The registered nurse in the obstetrical clinic would take a urine sample from each patient, do their blood work, and determine their weight. [ 31 ] Ms.

Lauzon indicated that a resident would see all the patients and then report to the obstetrician, but no patient would be discharged until seen by the obstetrician. [ 32 ] At 4:00 p.m. she and the registered nurse would be encouraged to leave. They would fill the examining rooms with the waiting patients and the obstetrician would continue to work until all his or her patients were seen. (iii) Dr. Christopher Adey [ 33 ] Dr. Adey completed medical school at Memorial University in Newfoundland in 1977. He was certified to practice in diagnostic radiology in 1985.

After his fellowship was completed in 1986, he worked in a hospital and in private practice Ottawa, ultimately becoming the director of mammography screening. During the time, he lived in Ottawa, he served as an assistant professor at the University of Ottawa. He was actively engaged in publications and research while in Ottawa. [ 34 ] In 1999, Dr. Adey moved to Windsor and joined Dr. Newell at the predecessor clinic to CML. Since 1999, he has had only a clinic-based practice. [ 35 ] In 2010, he performed, as he put it, the “entire gambit of diagnostic imaging”. (iv) The functioning of Dr.

Adey’s practice [ 36 ] Dr. Adey and Dr. Newell share reporting responsibilities at CML’s two major hubs. It was their practice to arrive at the facility in the morning to undertake the procedures that the radiologist must perform. In the afternoon, they review the preliminary reports and the images completed by their sonographers. It was Dr. Adey’s personal practice to report on studies the same day or, at the latest, first thing the next morning. [ 37 ] Margaret Dzus, the sonographer who performed TS’ January 27, 2010 ultrasound, had worked for Dr. Adey since her graduation in 2006.

She had a comfortable working relationship with Dr. Adey, who was available for consultation if she needed him. [ 38 ] Dr. Adey testified that 99.9 percent of the time he does not see any images in real time and in preparing his reports he reviews the requisition, any earlier scans, the sonographer’s preliminary report, and the images she has taken. He considered Ms. Dzus to be a very talented sonographer and had confidence in her. [ 39 ] The employees of CML, who Dr. Adey considers quite trustworthy and diligent, include a transcriptionist, a receptionist, a manager, and a courier.

They provided evidence admitted by written statement.

[ 40 ] When the radiologist at CML signed reports, he would place them in the bottom level of a tray and whenever a receptionist or the transcriptionist would go into his office they would take the signed reports from the tray and bring them to reception for sorting. The receptionist sorts the reports into stacks with one stack to be faxed, a second stack to await the courier, and a third stack to be delivered within the building. The staff knew the courier would pick up the reports at approximately 10:00 a.m. and 3:00 p.m. each day and they worked quickly to have the envelopes ready for those times. [ 41 ] Dr.

Adey indicated that for a sensitive or complex patient matter creating an emergency or some urgency, his practice is to fax the report to the referring physician. Dr. Adey referred to such a report as “a verbal report”. All other reports are delivered to referring physicians by courier and he expects that they will be delivered within 24 to 48 hours. [ 42 ] The courier delivered approximately 100 to 110 diagnostic reports each day. The courier followed a two-day

schedule pursuant to which he would make deliveries in one-half of the city of Windsor one day and the other half of the city on the following day. Dr. Jasey’s office was one of his regular stops, where he would deliver seven to ten envelopes every other day. [ 43 ] In 2013, Dr. Adey reported about 1100 obstetrical ultrasound scans (55 percent were first trimester or dating scans performed at less than 16 weeks’ gestational age and the balance were second trimester or anatomical ultrasounds performed at 18 to 22 weeks’ gestational age).

He had no reason to think that 2013 would differ in any substantial or significant way from 2008, 2009, or 2010. He estimated that this work was maybe 10 to 15 percent of his total workload. The health practitioners who treated TS (

i) Dr. Jordan Schmidt [ 44 ] Dr. Jordan Schmidt was the maternal fetal medicine specialist who saw TS and AY on March 23, 2010, after Dr. Jasey referred them to the Fetal Medicine Clinic in London. Dr. Schmidt ultimately delivered Baby girl S on […], 2010. [ 45 ] Dr. Schmidt was qualified as a maternal fetal medicine specialist in 2005. He described maternal fetal medicine as a sub- specialty of obstetrics and gynecology that deals primarily with the management and care of pregnancies complicated by maternal or fetal issues, in other words high-risk obstetrics. [ 46 ] Dr.

Schmidt outlined what the plaintiffs would have been advised if they had been referred to the Fetal Development Clinic around 24 weeks’ gestation. (ii) Dr. Jack Jung [ 47 ] Dr.

Jack Jung, a pediatrician with sub-specialty training in medical genetics, was referred to TS and AY on June 25, 2010 by the neonatologist involved with Baby girl S’ newborn care. [ 48 ] In 2010, he was the director of the Medical Genetics Program for Southwestern Ontario; an author of a number of publications related to medical genetics; a full professor within the department of pediatrics, with a cross-appointment in obstetrics and gynecology; and was the Chief of the division of medical genetics at Western University. [ 49 ] Dr.

Jung testified that a very significant part of his practice in 2010, perhaps one-third of all the patients he saw, were pregnant couples facing very serious issues with a pregnancy. He provided genetic counselling to those couples, which he described as being very complicated. He endeavoured to provide unbiased information in a non-judgmental fashion recognizing that there are cultural aspects that impact how people deal with this type of information. As he explained, different ethnic groups might regard a particular problem to “be extremely bad” whereas other societies are “much more liberal”. [ 50 ] Dr.

Jung described what information a geneticist would have provided TS and AY if they had been referred to the Fetal Development Clinic around 24 weeks’ gestation. The expert witnesses retained by the plaintiffs (

i) Dr. Jon Barrett [ 51 ] Dr. Barrett testified as an expert in the field of maternal fetal medicine and obstetrics. He has practised in this sub- qualification of obstetrics since 1995 in Canada and prior to that he practised in this area in the United Kingdom. He currently practises as a maternal fetal medicine specialist at Sunnybrook Health Sciences Centre in Toronto. In 2009/2010, he was either at Women’s College Hospital or his clinic had moved to Sunnybrook Health Sciences Centre by then). [ 52 ] Dr.

Barrett did not comment on the standard of practice of an obstetrician, but provided evidence as to the interrelationship between obstetricians and maternal fetal medicine specialists and how they interact with one another. [ 53 ] I acknowledge, as the defendants emphasized, that TS was ultimately referred to the Fetal Development Clinic in London, and it must be borne in mind that it is the relevant centre in this case. (ii) Dr. Walter Romano [ 54 ] Dr. Romano provided opinion evidence in the field of radiology, including the

interpretation, reporting, and communication of obstetrical ultrasound in a community setting and at the tertiary level hospital setting.

[ 55 ] Dr. Romano qualified as a radiologist in 1991. Since that time, he has practised regularly in clinical settings and at small community hospitals, but as well in a tertiary centre. For 22 years, he was the Director of Ultrasound at St. Joseph’s Health Care in London, Ontario, a tertiary centre. He also worked in the community at an x-ray clinic, held privileges at a number of community hospitals in southwestern Ontario, and was an Associate Professor of Radiology at Western University. [ 56 ] In 2009/2010, in addition to teaching at Western University and working as the Director of Ultrasound at St.

Joseph’s Healthcare London, he was also the coordinator of the Fetal Development Clinic and held appointments on the residency training committee for obstetrics and for radiology at Western University. However, 30 to 40 percent of his work was undertaken in smaller community hospitals and in independent clinics. [ 57 ] Dr. Romano provided his opinion on whether Dr. Adey met the standard of care required of a community radiologist in 2010. Specifically, he provided his opinion on how the findings on the January 27, 2010 ultrasound should have been communicated. [ 58 ] Dr.

Romano had previously provided expert reports and testified in defence of radiology colleagues, but had never testified on behalf of a plaintiff in a medical negligence case. (iii) Dr. George Arnold [ 59 ] Dr. Arnold was qualified as an expert in the area of obstetrics. He obtained his medical degree in 1986 and was certified by the Royal College of Physicians and Surgeons as an obstetrician/gynaecologist in 1992. From 1999 to the present, he has been the chief of the department of obstetrics and gynaecology at the Markham-Stouffville Hospital.

In 2009/2010 about 50 percent of his practice was obstetrics and the other 50 percent was gynaecology. In 2009/2010, he would have performed approximately 300 to 400 deliveries a year. [ 60 ] Dr. Arnold has held leadership positions in the Ontario Society of Obstetrics and Gynaecologists and has sat on a number of surgical advisory committees, medical advisory committees, the Board of Directors, and committees at the hospital in Markham.

Since 2003, he has been a medical consultant to the College of Physicians and Surgeons of Ontario, now referred to as a medical inspector and has advised the College on whether or not obstetrics and gynaecologists have met the standard of care. He also has been a member of the quality assurance committee at the College of Physicians and Surgeons and since 2004 is a standing member of the obstetrics panel of the complaints committee of the College. [ 61 ] Dr. Arnold has been qualified as an expert in obstetrics in the Superior Court of Ontario and has provided opinions on behalf of hospitals or nurses.

He has also provided opinions to the Canadian Medical Protective Association (“the CMPA”), but has not appeared in court on behalf of anyone who has obtained representation through the CMPA. He acknowledged on cross-examination that he provided an opinion on behalf of doctors “a long time ago”, so for many years it has been plaintiffs who have sought out his opinions. [ 62 ] Dr. Arnold provided his opinion on whether Dr. Jasey met the standard of care required of a community obstetrician in 2010. The expert witnesses retained by the defendants (

i) Dr. Michael Shannon [ 63 ] Dr. Shannon provided his opinion on the standard of care required of a community obstetrician in 2010 and whether Dr. Jasey met that standard. [ 64 ] Dr.

Shannon obtained his medical degree in 1987 from the University of Toronto, completed a rotating internship in 1988, was a resident in the Department of Obstetrics and Gynaecology at Western University from 1988 to 1992 and became a fellow of the Royal College of Physicians and Surgeons of Canada with a specialist certificate in obstetrics and gynaecology in 1992. [ 65 ] From 1992 to April 1, 2001, he worked in the Department of Obstetrics and Gynaecology at Stratford General Hospital and from there moved to the Cambridge Memorial Hospital where he worked from March 2001 to July 2003.

Since July 2003, he has been a member of the Department of Reproductive Medicine at Grand River Hospital in Kitchener, Ontario. [ 66 ] In 2010, 70 percent of his practice was devoted to obstetrics and the balance to gynaecology. He estimated that he delivers 300 to 350 babies a year. He regularly orders and reviews anatomical ultrasounds. [ 67 ] He has provided legal opinions on behalf of plaintiffs and his medical colleagues, who are defendants. He has also reviewed competency to practise under the Regulated Health Professions Act . [ 68 ] On cross-examination, Dr.

Shannon acknowledged that in 2009 on a website publication entitled “Doctor of Dogmatic Theology and Ob/Gyn Condemn Early Induction Abortions at Catholic Hospital in London”, he had expressed opinions about termination policies at St. Joseph’s Health Care in London, Ontario and indicated his opposition to early induction in cases of lethal fetal anomalies. Dr. Shannon acknowledged a number of his comments within the

article including the following statements attributed to him: The teaching of the Catholic Church is clear – pregnancy termination for whatever reason is just that – pregnancy termination. The ‘feelings’ or ‘prayerful discernment’ of the couple have nothing to do with the consistent teachings of the Catholic Church in these situations and objective moral truth. In 16 years of practice as an obstetrician, gynecologist I have never seen or heard of a case of anencephaly which resulted in the mother’s life being put at medical risk.

In fact, in the case of a woman carrying an anencephalic child I would always counsel the couple to allow the pregnancy to go to term and induce labour then if it has not occurred naturally (or to the point where the child died in utero) and intervene at that time for necessary medical indications. The parents then have the consolation that they have not terminated the

pregnancy and have allowed nature to ‘take its course’. [ 69 ] Dr. Shannon explained that undertaking this procedure in a Catholic hospital and the endorsement of the procedure by the clergy was his issue, not the actual procedure itself. [ 70 ] Ultimately the following exchange took place between Dr. Shannon and counsel for the plaintiffs: Q: All right, can we agree that you are opposed personally to the act of termination of a pregnancy based on your religious beliefs? And I don’t wish to – to denigrate them in anyway at all sir. I just need to understand your testimony. A: You – you are.

You are, but none the less, what I’m saying is I don’t perform them. [ 71 ] On re-examination, Dr. Shannon indicated that he is Catholic and has personal views on abortions. Dr. Shannon clearly does not perform abortions. However, the defendants emphasize that this is not a case about whether Dr. Shannon performs abortions and, regardless of his personal views, Dr. Shannon does make referrals to his tertiary centre in Hamilton on behalf of patients who wish to terminate their pregnancies. Dr.

Shannon also stated on re-examination that his membership in any type of organization (one of which was discussed with him during his cross-examination) and his personal beliefs do not play any role in whether or not he makes such referrals following a second trimester ultrasound. (ii) Dr. Edward Lougheed [ 72 ] Dr. Edward Lougheed provided his opinion on the standard of care required of a community radiologist in 2010 and whether Dr. Adey met that standard. [ 73 ] Dr.

Lougheed graduated from medical school in 1981 and, after completing a rotating internship, undertook a year of family practice in northern Ontario.

He then entered a residency program in radiology, which he completed in 1987, and thereafter obtained his specialty designation from the Royal College of Physicians and Surgeons. [ 74 ] Since 1987, he has served as a radiologist at the Royal Victoria Hospital in Barrie, Ontario, which originally was a small community hospital but has become a large community hospital serving as a regional centre and is, as he put it, “pretty close to a tertiary centre but not completely there”. From 1993 to 2000, he was the Chief of Imaging Services or the Chief of the Radiology Department at that hospital.

He also has privileges at the Georgian Bay General Hospital in Midland, Ontario, a small community hospital. [ 75 ] He has served as president of the medical staff at the Royal Victoria Hospital representing the medical staff on the Board of Directors of the hospital. He has also served on the hospital’s medical advisory committee and in other administrative roles. [ 76 ] In addition, since 1987 he has had a clinic-based practice as one of 12 radiology partners with seven clinics providing services under the name Georgian Radiology Consultants. [ 77 ] Dr.

Lougheed estimated that he has read thousands of obstetrical ultrasounds in his practice. The birth of baby girl S, […], 2010 and baby boy S, […], 2012 [ 78 ] Both AY and TS were very emotional when they testified about the birth of Baby girl S. Neither of them knew what to expect or how their baby would look. They were concerned with how they would feel. Would they bond with their baby? They described a very crowded delivery room and were concerned about their privacy not wanting a lot of curious people looking at their baby.

They were grateful for the support of TS’ mother (who unfortunately is now deceased). [ 79 ] As the social work records of St. Joseph’s Health Care indicate, consistent with TS’ and AY’s testimony, before Baby girl S was born they were “worried, concerned and afraid of the outcome for their baby”. However, after Baby girl S was born, they were “relieved and happy”, because Baby girl S’ arms had mobility and she had hands. [ 80 ] As Dr. Schmidt similarly testified, the outcome for Baby girl S was more positive than they had anticipated before she was born.

He testified that they had been “fairly accurate” in terms of what they had anticipated seeing based on an ultrasound March 23, 2010. However, they had been unable to deter0mine before the baby was born what level of mobility and functionality there may be. As he put it, “we were quite pleased that the right arm appeared to be fairly mobile and separate. The hand was definitely abnormal but did appear to have mobility within it”. They were “encouraged” that the left arm appeared to have more mobility and “more activity available within that limb” than anticipated from the appearance on the ultrasound.

There were fingers on both hands, although the left hand continued to have the flipper appearance that he described to the plaintiffs during their March 23, 2010 appointment at the Fetal Development Clinic, which I will detail below. [ 81 ] Dr. Jack Jung saw TS and AY in the Neonatal Intensive Care Unit at St. Joseph’s Hospital. He described the challenge of meeting with parents in these very crowded conditions, in “almost a circus atmosphere”, where there is no privacy. While it was not an ideal situation in which to have a discussion, it was important to provide some information to the parents at that time.

They were wondering, as any parents would, why their child had this significant condition. [ 82 ] After conducting a physical examination of Baby girl S, Dr. Jung offered them a number of differential diagnoses for the limb reduction defect, which was his major finding, although there were other issues noted. He spoke to them about a number of possibilities including that Baby girl S could have these characteristics because a brand-new mutation had occurred or her parents could carry the gene but not reveal any characteristics. [ 83 ] As Dr.

Jung explained, a molecular genetic test is not easily done and requires the services of a specialized laboratory in the United States thus requiring prior approval by the Ontario Ministry of Health. He prepared the forms for TS and AY to sign to permit

out-of-country testing. [ 84 ] Dr. Jung concluded his discussion with TS and AY by noting that there would be genetic follow-up at North York General Hospital (as TS moved to Toronto to live with AY just prior to the birth of baby girl S). [ 85 ] Dr. Mendoza, a clinical geneticist at the Hospital for Sick Children (where Baby girl S has been treated since her discharge from St.

Joseph’s Health Care) provided the following physical description of Baby girl S in a report dated August 19, 2010 to a referring plastic surgeon: Her upper limbs, on the right side, showed a short forearm with a hand showing four digits and ulnar deviation. There is no thumb present. On the left side, there is a very short upper arm and forearm. There are three digits visible and there is absence of the thumb as well … There are some minor anomalies on face including a preauricular tag and a pit. [ 86 ] As AY and TS described, they have had many doctors’ appointments and many investigations for Baby girl S.

Her heart was investigated. She has had plastic surgery. She has no hearing in her right ear. She has had considerable occupational therapy and physiotherapy. [ 87 ] Baby girl S has also been under the care of Dr. Bedford, a paediatric geneticist. According to Dr. Bedford’s reports, and as TS and AY testified, TS and AY were understandably anxious to learn what the future held for Baby girl S and what the risks were if they were to have other children. [ 88 ] In her preliminary report dated March 14, 2011, Dr.

Bedford indicated that if TS were to become pregnant “the best tool to identify a recurrence would be [an] ultrasound”. TS became pregnant again in 2011, which was an unplanned pregnancy. They consulted with their obstetrician and informed him about everything they knew about Baby girl S. [ 89 ] TS had a second trimester ultrasound on December 2, 2011 during which she and AY asked to see the baby’s limbs. TS described herself as “a crazy person” at this ultrasound and explained that she was “terrified” and needed reassurance.

She and AY were shown the arms of their second baby on the ultrasound and were informed that they were normal. They were also shown the toes and fingers. They were very relieved and happy. [ 90 ] On December 12, 2011, Dr. Bedford sent a consultation note to TS and AY’s family doctor in which she reported on the result of her investigations and her ultimate diagnosis that Baby girl S had a SALL4 gene mutation that resulted from a rare and spontaneous event. [ 91 ] Dr. Jung testified that up to, and subsequent to, 2010 he has had no experience with a SALL4 gene mutation. Dr. Jung noted that Dr.

Bedford’s analysis and investigation required nine months and he credited her “for being tenacious in her investigations”. [ 92 ] Dr. Bedford reported to TS and AY that cognitive delay is not usually a feature of the SALL4 condition. Similarly, Dr. Jung indicated that while cognitive delay is reported within SALL4 mutations, it is not in the majority of people with SALL4 mutations. [ 93 ] As Dr. Bedford acknowledged in her December 12, 2011 consultation note, TS informed Dr.

Bedford that she was 21 weeks pregnant and that she had had a detailed ultrasound at 19 weeks’ gestation, in which it had been reported that all four limbs appeared normal. Dr. Bedford noted that this was “reassuring given the high frequency of radial ray anomalies in people with a SALL4 mutation, however some findings may be subtle or not detectable by ultrasound”. As a result, Dr. Bedford indicated that an ultrasound would not rule out a SALL4 related condition in the baby. [ 94 ] As Dr.

Bedford reported, the SALL4 mutation is a dominant gene and if either TS or AY carried it, the chance of having another child with a SALL4 related condition would be 50 percent in each pregnancy. If neither had the mutation there would have been a de novo mutation in Baby girl S and the chance for her parents to have another child with that condition would be much lower, in the range of one to five percent. [ 95 ] Dr. Jung indicated that a one-to-five percent risk of having a child with this mutation was a “significantly elevated risk as compared to the general population”. Dr. Jung also agreed with Dr.

Bedford’s advice to TS and AY that an ultrasound would not rule out a SALL4 related condition in their second baby. [ 96 ] In her consultation note, Dr. Bedford stated that she discussed with TS and AY the option of amniocentesis for definitive testing and TS and AY declined amniocentesis.

As TS testified, based on what she was shown during the second trimester ultrasound, she felt confident that her second pregnancy would not be affected by what had affected her first and, as a result, she did not have an amniocentesis during her second pregnancy. [ 97 ] TS, AY, and their second baby, who was born […], 2012, have been tested and they are all negative for SALL4. [ 98 ] The fact that TS and AY declined amniocentesis during their second pregnancy will be discussed further when I address the issue of causation. The initial involvement of Dr. Kuprowski [ 99 ] Dr.

Kuprowski, who had been TS’ family physician her whole life, saw TS on October 6, 2009 when she reported that she had a positive home pregnancy test after her last menstrual period August 22, 2009. He confirmed the pregnancy, prescribed prenatal vitamins, and referred her to Dr. Jasey. The first trimester ultrasound—November 5, 2009

[ 100 ] AY joined TS for her first trimester ultrasound on November 5, 2009. [ 101 ] As Dr. Romano explained, a first trimester screening ultrasound between 11 and 13 weeks’ gestation has been advocated in Ontario since about 2003. This ultrasound is performed in conjunction with blood work. [ 102 ] Dr. Adey’s written report to Dr. Jasey on the first trimester ultrasound was dictated, transcribed, and printed on November 6, 2009. Dr. Adey described this ultrasound as an entirely normal scan.

It indicated a gestational age of nine weeks, identified a positive fetal heart rate, and estimated her delivery date as June 9, 2010. The December 22, 2009 appointment with Dr. Jasey [ 103 ] The records reveal that TS reported into the admitting department at Windsor Regional Hospital at 12:45 p.m. She then proceeded to the obstetrical clinic, checked in with the ward clerk, and provided the nurse with her urine sample. She recalled having her vital signs taken. She testified that she then waited in the waiting room and had an ultrasound in the clinic.

TS did not recall who performed the ultrasound or where in the hospital it was done. [ 104 ] TS testified that after waiting a long time she inquired with the ward clerk whether her wait would be much longer. She was told that Dr. Jasey had been called away and could not see her that day. TS testified that the nurse then provided her with a card indicated she had been scheduled for an appointment four weeks later on January 19, 2010. In her day planner, for December 22, TS noted the following: Ultrasound number 2 Dr. Jasey 1 pm Cancelled, sent home [ 105 ] TS’ evidence that she did not see Dr.

Jasey on December 22, 2009 was contradicted by Dr. Jasey. [ 106 ] Dr. Jasey recalled that TS was a nursing student. He testified that he completed the history on the antenatal record and physically examined TS on December 22, 2009. However, he did not chart anything regarding the physical examination. He explained that he does not always document his physical examination on the record and instead details his examination in his note back to the referring family doctor. [ 107 ] Dr. Jasey was on-call on December 22 and he dictated his consultation notes for that day’s clinic after midnight. Dr.

Jasey testified that his consultation note to Dr. Kuprowski reflected his findings on the physical examination of TS or was information TS provided to him: her past history was remarkable for wisdom tooth extraction, her family history was negative for known congenital or genetic syndromes, she was taking pre-natal vitamins, she had no allergies, she was in no distress when assessed, her chest exam was normal, her heart sounds were normal, and her abdomen was normal. TS confirmed the accuracy of the history contained in Dr. Jasey’s consultation note. [ 108 ] Dr.

Jasey testified that it is his general routine on a first visit to use the portable ultrasound and scan the patient. The records reflect that an image was taken on December 22 at 3:16 p.m. [ 109 ] TS had a requisition for a maternal serum screen and a second trimester ultrasound signed by Dr. Jasey. She had no recollection of when, or how, she got these requisitions and denied that Dr. Jasey gave them to her. [ 110 ] Dr. Jasey testified that he gave TS the requisition for the maternal serum screen on which he noted that TS smoked cigarettes during the pregnancy, information he testified that he obtained from TS.

This notation and other clinical information was in his handwriting. [ 111 ] In Dr. Jasey’s antenatal record he accurately noted that TS was no longer smoking. He explained that it was critical that her smoking during the pregnancy was noted for the maternal serum screen requisition because that activity alters the parameters of the test. [ 112 ] Dr. Jasey also testified that he gave TS a requisition for a second trimester ultrasound at her December 22 visit and advised her to have the ultrasound performed between 18 and 22 weeks’ gestation. [ 113 ] Dr.

Jasey acknowledged on cross-examination that if TS was seen December 22 at 3:16 p.m. at the time the ultrasound was taken, she would have been in his clinic for two and a half hours at that point, which was 45 minutes prior to the time the clinic was scheduled to close. As previously noted, he had 45 patients scheduled to be seen that day (including six new patients) and he performed a caesarian section. He acknowledged that if he had been running two and a half hours behind

schedule he would not have finished his clinic until approximately 6 p.m., after which he was on-call, saw two patients and delivered a baby. He was challenged on his ability to recall after midnight the physical examination that he conducted of TS distinct from any of the other patients he saw that day, which was required in order to complete his note to Dr. Kuprowski because he had made no note of a physical examination. He testified that he documents by exception so that if he found anything abnormal he would have documented that for his dictation afterwards. [ 114 ] It was pointed out to Dr.

Jasey that his consultation note indicated that thus far in the pregnancy TS denied difficulty with bleeding, which he acknowledged involved cramping, whereas the antenatal record included a note by someone in his office that she had some cramps. [ 115 ] Dr. Jasey’s

schedule was summarized for Dr. Arnold. Dr. Arnold indicated that in these circumstances, it would probably be very challenging for Dr. Jasey when he dictated the consultation note after midnight to remember what he had done the day before for a particular patient, if he had no recording of his physical examination.

[ 116 ] It was put to Dr. Jasey that it was possible that TS left the clinic on December 22 without seeing him and the requisitions were provided to TS later. Dr. Jasey was adamant that such a scenario was not possible. [ 117 ] I accept that Dr. Jasey did see TS on December 22. An ultrasound was performed, and as Dr. Jasey and Ms. Lauzon testified, only Dr. Jasey performs the ultrasounds. I note that Dr.

Shannon’s evidence was that there was “no way” a nurse, a nursing student, or a resident would have been able to perform the ultrasound taken on December 22, 2009 and delineate the measurements reflected in the records. [ 118 ] Further, Dr. Jasey’s handwriting was on TS’ chart and on the maternal serum screen requisition. The information that he noted in relation to her wisdom teeth extraction and the fact that she was not smoking then, but had smoked during the pregnancy came from TS. The presentation of that information on the maternal serum screen requisition and on her chart, reflects a conversation with TS.

I note that Dr. Shannon concurred with the significance of noting on the requisition that TS had smoked during the pregnancy. [ 119 ] In addition, the maternal serum screen requisition and the requisition for the second trimester ultrasound were signed by Dr. Jasey. I find that Dr. Jasey gave those requisitions to TS on December 22, 2009. [ 120 ] Considering the foregoing, I cannot find that Dr. Jasey did not see TS. Such a finding would mean that Dr. Jasey billed OHIP for services he did not perform and was not forthright and honest in his consultation note to Dr.

Kuprowski, which is not appropriate considering the evidence described above. Furthermore, such a finding would be inconsistent with the evidence of Ms. Lauzon. She indicated that occasionally a patient leaves before the obstetrician sees them but in that event the patient would be told to return the next week, go to the triage clinic or call the office for an appointment to be seen at the obstetrician’s private office particularly if it was at a first visit. Ms.

Lauzon agreed with the suggestion put to her on cross-examination that it would not happen that a patient would be told to come back in four weeks and if TS testified to that effect, she most likely was mistaken. [ 121 ] I am satisfied that TS was mistaken in her belief that she did not see Dr. Jasey on December 22, 2009. Dr. Jasey’s practice was a very busy one. He would have had very little time to spend with TS, and I find it unsurprising that TS did not recall him seeing her that day. [ 122 ] While I have not accepted TS’ evidence in relation to Dr.

Jasey’s absence on December 22, 2009, I do not find that she was intentionally misleading the court or that her belief was not an honest one. Rather, she was simply mistaken in this respect and this finding does not detract from her credibility. [ 123 ] I note here that I found that both TS and AY were credible witnesses and that their beliefs were honestly held. They offered evidence that reflected candour in contrast to rehearsed version of events (for example, TS’ evidence that she no memory of conversations with Dr. and Mrs.

Kuprowski on March 16, 2010 and AY’s evidence of a statement he attributed to TS of their meeting with the Kuprowskis on March 16, 2010, which I discuss further below). Overall, their evidence was honest and straightforward, although, as I have found, not always reliable. The maternal serum screen—December 2009 [ 124 ] Both Dr. Schmidt and Dr. Shannon testified that the maternal serum screen involves blood work at 15 to 16 weeks’ gestation.

This test provides a calculation of risk as to whether or not a baby will have a chromosomal problem or certain structural birth defects. [ 125 ] TS noted in her day planner for December 28, 2009 that she had her blood work done. A copy of the requisition for the maternal serum screen dated December 29, 2009 was given to her employer to explain her absence from work. [ 126 ] TS understood that the maternal serum screen was to determine if her baby had Down’s Syndrome or another defect.

She testified that if the results had been positive she would have explored her options and would have been prepared to terminate her pregnancy. [ 127 ] The results, which were printed January 4, 2010, were normal. The January 19, 2010 appointment with Dr. Jasey [ 128 ] TS testified that her appointment with Dr. Jasey on January 19, 2010 was scheduled for 1:00 pm. At this point, TS was at 19 weeks, 6 days’ gestation. [ 129 ] TS again provided the nurse with a urine sample and had her vital signs taken. She recalled she saw a medical student who assessed her, measured the fundus, and heard the baby’s heartbeat.

She reported that she was under a lot of stress and her abdomen was uncomfortable. [ 130 ] She testified that after she met with the student, her appointment was concluded and she was given a card for an appointment four weeks later. There was no mention of her second trimester ultrasound. [ 131 ] TS noted her January 19 1 p.m. appointment in her day planner. She also noted the following: cancelled; med student, measured and heartbeat only. [ 132 ] TS testified that after January 19 she became concerned that she had not yet seen Dr. Jasey. She discussed this with AY and her best friend, Lisa Goland. Ms.

Goland and AY both recalled TS discussing her concerns. Ms. Goland recommended her obstetrician, Dr. Hazin. [ 133 ] TS called Dr. Kuprowski’s office and spoke to his wife and nurse, Mrs. Kuprowski, and asked for a referral to another

obstetrician. TS testified that she understood from Mrs. Kuprowski that she could not be referred to Dr. Hazin because she had already had prenatal care. [ 134 ] Mrs. Kuprowski confirmed that in January 2010, TS was unhappy with Dr. Jasey because he had not seen her and requested a referral to Dr. Hazin. Mrs. Kuprowski testified that she advised that such a referral was not possible and TS should call Dr. Jasey and demand to be seen. There is no evidence that any such call was made by TS or that she raised her concerns with Dr. Jasey’s office. [ 135 ] Dr.

Jasey had no specific recollection of the January 19, 2010 visit. His writing was not on the record for this date and he confirmed it was his medical student that took the notes. He testified that he and the student would have seen TS together and he would have ensured that what the student found was accurate. [ 136 ] Dr. Jasey testified that, by this point in time, the results of the maternal serum screen were available and he would have advised TS of these results. He testified he would have also determined whether her second trimester ultrasound had been completed or scheduled.

He would have been satisfied if he had been told that her ultrasound was scheduled for January 27, 2010 at 21 weeks’ gestation. There are no notes confirming these discussions and as will be discussed below Dr. Jasey’s record keeping was deficient in some respects. [ 137 ] Dr. Shannon testified that the fact that TS saw a medical student at this appointment was “perfectly normal” and that students take the history and then see the patient with the physician. Dr.

Shannon expressed the opinion that it was extremely unlikely that TS would only be seen by the medical student at this appointment. [ 138 ] Again, I am satisfied that TS was mistaken in her belief that Dr. Jasey did not see her. I am satisfied Dr. Jasey would have followed his usual procedures and spoken to her very briefly on January 19, 2010 during his very busy day in the clinic. The January 27, 2010 second trimester ultrasound performed on TS [ 139 ] As Dr. Romano emphasized, ultrasound is “a real-time tool” so that sonologists, who Dr.

Romano described as the “eyes and hands” of a radiologist, can assess anatomic landmarks and movement. As he put it, the sonologist is “actually getting to see a movie of the baby” whereas the radiologist sees static pictures at the end. [ 140 ] Ms. Dzus typically performed two to three obstetrical ultrasounds each day as part of her employment with CML. Fifty minutes were allocated for a second trimester ultrasound. [ 141 ] As Dr. Romano, Ms. Dzus, and Dr.

Adey outlined, the factors that might impede a sonographer’s ability to see the structures that are supposed to be seen are: the position of the fetus, the position of the placenta, the size and weight of the mother, the volume of amniotic fluid, and the gestational age of the baby. [ 142 ] As Ms. Dzus explained, if the baby’s chest is up the baby’s heart is seen best. If the baby’s chest is down, the baby’s spine is seen best. An anterior placenta can cause problems imaging certain structures. If a mother is larger, the images are not as good. If the amniotic fluid is low, sonographers do not see as well.

As the baby gets bigger, the structures are easier to see but it is harder to penetrate through the bones and once a certain gestational age is passed it becomes difficult to see certain things. As a result, an ultrasound is best done at 18 to 22 weeks. [ 143 ] TS had her second trimester ultrasound within the 18 to 22 week window. Again, AY joined TS for her appointment. He recalled that they learned they were going to have a girl. They left the appointment, as he put it, “on cloud nine”. They were very happy and had no concerns. [ 144 ] Ms. Dzus explained that in her preliminary report prepared for Dr.

Adey she noted the previous ultrasound on November 5, 2009. She observed fetal movement. She confirmed there was one fetus, the baby was presenting in the cephalic position meaning that the baby’s head was down by the cervix, the amniotic fluid volume was normal, the position of the placenta was fundal, and the cervix was clear. [ 145 ] Under the fetal anatomic study, she indicated that the ventricles, cerebellum, spine, stomach, bladder, kidneys, three vessel cord, cord insertion, diaphragm, and four-chamber heart “were seen and appeared normal”, and she recorded the heartbeat. [ 146 ] Ms.

Dzus did not make the same marking in relation to the four limbs. Instead, she circled “four limbs” and added the phrase, “see below”. [ 147 ] At the bottom of her report under comments, she noted the following: - single L.I.G. [single baby, live intrauterine gestation]; - 21 W0D [21 weeks, 0 days’ gestation based on the measurements she made]; - unable to image the left forearm and humerus over entire exam; - the arm never extended and the hand remained flexed; - right arm normal. [ 148 ] Ms.

Dzus explained that her comments indicated that she had gone back and looked at the left arm multiple times but was unable to image it. [ 149 ] She took still photos at 11:22:49 and 11:22:36 which reflected her two attempts to image the left hand. As she put it, these

images were “the best pictures I could take to show what I could at that time”. The timing of these photos indicated that she took them close to the end of her examination. As she explained, she does not take a picture to prove that she cannot see something and instead moves on and then goes back and tries to find what she’s looking for again. If she is not able to find what she’s looking for, she moves on again to something else and then goes back. [ 150 ] During her testimony, Ms. Dzus reviewed the images that she took on January 27, 2010.

She confirmed that the baby did move side to side because in some pictures the baby’s heart is up, which means the chest was up and in some pictures the spine was up. [ 151 ] Ms. Dzus confirmed that there was nothing that impeded her ability to view the fetus and this ultrasound was conducted at a time which fell “into the ideal window” to do the scan. [ 152 ] Dr. Adey acknowledged that there were no impediments to Ms. Dzus’ viewing of the fetus and none of the factors that affected the visibility of the ultrasound were present.

He agreed that the fact that she was able to see virtually all of the structures that were intended to be seen suggested that conclusion. [ 153 ] Similarly, Dr. Romano was confident that this was not a situation where the sonologist was not able to see the left extremity and he noted that Ms. Dzus commented not only on its morphology but also its function. [ 154 ] Ms. Dzus indicated that the only difficulty that she had in conducting the scan was in relation to the left forearm and humerus area, because the baby was cephalic, means [sic] the head was down.

The arm was further away from my probe and based on my images it looks like the baby did not move from the cephalic position so I had one window or one angle to assess that area. “Ideally” she would have had “more than one window to get different angles at that area”. She further confirmed in cross-examination that the fact that the baby was in the cephalic position throughout the examination might be another reason or a contributing factor to her inability to ultimately get a good view of the left side.

As she explained, she would “like to come at it from one way and then to come at it from another way to see it”. [ 155 ] Ms. Dzus also explained that because of her inability to image the left forearm and humerus, further investigation was required because you could not say from a single scan at one time that the left forearm or humerus “wasn’t there, but you need to find out why it wasn’t seen”. [ 156 ] When Ms. Dzus began her evidence, she was asked by plaintiffs’ counsel to define some terms and was asked what the word “typical” meant to her. Ms.

Dzus answered that typical is what she would see on a normal fetus. She was then asked what the word “atypical” meant to her and she responded, “abnormal, not what I would expect to see on a normal fetus”. She was asked further why she considered the word atypical was the equivalent to abnormal and she responded, “because it’s not normal and it’s not what I would expect to see”. Ms. Dzus went on to say that she characterized the images described in her report as not typical so her report would be considered an abnormal one. [ 157 ] On cross-examination, Ms. Dzus agreed with the proposition that: (

i) when she used the word “typical” in relation to an ultrasound she means an ultrasound where basically all of the structures are visualized and she’s ticked off all of her boxes as normal; (ii) when she used the term “atypical” or “abnormal” what she is referring to is a situation “where not everything is perfectly normal”; (iii) when she uses the word “atypical” she does not mean that there is some kind of confirmed abnormality with the fetus. “It just means that you have not achieved a perfect ultrasound examination”; (iv) it is possible when she is performing a second trimester obstetrical ultrasound, that she is able to confirm that there is something wrong with the fetus or if there is an abnormality you can actually see, but there is also a category of ultrasounds where it is not a perfectly normal ultrasound but you certainly cannot conclude conclusively that there is a definitive abnormality; (

v) this latter category of ultrasounds would also fall into the atypical category she had described during her examination-in-chief; (vi) “atypical” does not mean a confirmed abnormality with the fetus and she explained that “there could be an abnormality, but at that time I can’t say for certain that there is one”; and, (vii) her report did not reflect “a significant confirmed abnormality” and was “properly characterized as an inconclusive study”. [ 158 ] In cross-examination, Ms.

Dzus confirmed that, particularly in obstetrical ultrasounds, it is not unusual that she is unable to visualize one of the structures, it is not something that is alarming to her nor is it something that would cause her to speak to the radiologist. As she explained, even the inability to visualize a four-chamber heart is not something that would cause her to verbally report to the radiologist that there is a problem. Similarly, TS’ January 27, 2010 ultrasound was not the type of ultrasound that would cause her to speak to Dr.

Adey because it did not raise any urgent concern for her. [ 159 ] The fact that she could not image the arm did not “necessarily mean at that particular point in time that the arm was missing”, just that she could not image it. She confirmed on cross-examination that the fact that she had an image of the left hand created the possibility that there was a limb. She agreed that if she had formed the impression that the arm was missing she would have noted that in her report. On re-examination, she confirmed that she could not determine if the limb was there or not.

She could only determine that she could not see it. [ 160 ] The bottom line from Ms. Dzus’ testimony is that her preliminary report reflected that she had not seen a normal fetus as she

expected, which was not unusual or alarming to her, and she could not confirm there was an abnormality or that the arm was missing. Dr. Adey’s report on the January 27, 2010 ultrasound [ 161 ] Dr.

Adey’s report on the January 27, 2010 ultrasound was dictated, transcribed, and printed that day. [ 162 ] The Canadian Association of Radiologists (“CAR”) and the Society of Obstetricians and Gynecologists of Canada (“SOGC”) published guidelines which are applicable to the conduct of the defendants. [ 163 ] CAR published a standard, approved on September 25, 2010, titled “CAR Standard for Performing Diagnostic Obstetric Ultrasound Examinations”.

These guidelines note that “adequate documentation of each examination is critical” and reporting should be in accordance with the CAR Standard for Communication of Diagnostic Imaging Findings. [ 164 ] The CAR guidelines detail that, amongst other things, fetal cardiac activity, the estimate of amniotic fluid, the placenta location, and an estimation of gestational age should be reported.

Fetal growth and weight should be assessed. [ 165 ] The portion of the CAR guidelines relating to the fetal anatomic survey prepared jointly with the SOGC requires an assessment of “all four limbs to the level of the hands and feet and the presence or absence of hands and feet”. [ 166 ] The CAR guidelines state that “the fetal anatomic structures should be reported as normal or abnormal (with details) or not adequately seen (with details)”. [ 167 ] The SOGC guidelines require the same assessment and reporting as set out in a clinical practice guideline published March 2009 titled “Content of a Complete Routine Second Trimester Obstetrical Ultrasound Examination and Report”.

Specifically, it states that the contents of a complete obstetrical ultrasound report in relation to fetal anatomy “should be reported as: normal or abnormal (with details) or not seen, with explanation” and “all four limbs to the level of the hands and feet should be visualized, and the presence of hands and feet should be noted”. [ 168 ] The SOGC guidelines also state: If a structure was not seen, this should be reported, along with the reason it was not seen.

If fetal or maternal abnormalities are reported, a differential diagnosis and, when appropriate, a recommendation for further investigation should be provided. The report should comment on any significant technical difficulty of the examination.... Any significant fetal or maternal abnormalities need to be reported promptly to the caregiver. The communication should be recorded in the patient’s file. [ 169 ] Dr.

Adey’s report on the January 27, 2010 ultrasound included the following: The left hand was noted to be flexed and non-mobile during the entire examination and the left forearm and left humerus could not be imaged. It is possible that this is related to the persistent flexion at this level through the exam but the right arm appeared normal anatomically and demonstrated good movement throughout the exam. Otherwise, fetal anatomy is unremarkable. [ 170 ] Dr. Adey described this ultrasound as an incomplete examination. He emphasized that the presumed significance of Ms. Dzus’ findings were entirely uncertain.

As he explained further, frequently (in 10 to 20 percent of ultrasounds) there is some part of the anatomy which is not seen well and usually it is the heart. However, it is “not unusual” to not see the limbs. Perhaps for that reason, he had no recall of this ultrasound “in any way shape or form”. He expected Dr. Jasey to return the patient in the short term for a targeted reassessment of the arms. [ 171 ] On cross-examination, Dr.

Adey elaborated that he saw nothing on the imaging that would need emergent treatment, because he was neither seeing a placenta previa that needed immediate communication nor anything that was imminently going to affect the life of the mother or child. [ 172 ] Dr. Adey acknowledged during cross-examination that i. Ms.

Dzus had not identified that the left arm and left humerus could not be imaged because of the persistent flexion and that it was he who had reported such a possibility even though she was in the best position to evaluate if there was an impediment to her vision and it would be her habit to note such an impediment in her preliminary report; ii. given that Ms.

Dzus saw the right arm move, he would have expected to see the left arm move as well and that lack of movement was a concern; iii. the absence of fetal movement is abnormal if a fetus is not clearly asleep (which was the case here); iv. the absence of a limb is abnormal; v. most frequently, the structures or body parts that are not seen are the heart, the cranium, and the bottom of the spine, and it is not limbs that are most frequently not viewed; vi. it is unusual for limbs not to be seen at 20 to 21 weeks; however, such a situation is not unheard of; vii. the absence of movement in the hand and its fixed flexed position is abnormal; he commented that he had not been aware that Ms.

Dzus claimed she had gone back and tried to take images of the hand until he had an opportunity to review a

transcript of her testimony at trial and, as he pointed out, he only had two photographs of the left hand taken within seconds of each other, “at 11:22:49 and 11:22:36”; however, he had to acknowledge that Ms. Dzus clearly noted that the hand remained flexed over the entire exam, which he conceded referenced from the time she started the scan until she completed the scan [Ms. Dzus testified that she was allocated 50 minutes to do a second trimester ultrasound]; and, viii. a flexed hand for the entire exam is unusual and potentially abnormal. [ 173 ] Dr.

Adey provided the following evidence regarding the flexed left hand: Q. I’m asking about the flexed hand? A. High potential that that may well be abnormal, yes. Q. High potential? A. Yes. Q. More likely than not? A. More likely than not, but not definite. Q. But it’s abnormal? A. Yes. [ 174 ] With respect to the non-mobility during the entire exam, Dr. Adey acknowledged that it was “worrisome” and “potentially” significant. [ 175 ] Dr. Adey agreed that the flexing of the left hand and the non-mobility of that hand during the entire exam was an abnormality that he wanted to make sure he pointed out to Dr.

Jasey. [ 176 ] Dr. Adey also conceded that he made reference to the forearm and the left humerus not being imaged because he would “probably” go as far as to say it was worrisome. However, he also conceded that he didn’t say in his report that the non-imaging was probably related to the persistent flexion, just that it possibly was and it was “always a possibility” that it wasn’t seen because it wasn’t there. However, Dr.

Adey was steadfast that it was still only possible that the limbs were not there and he would not accept that such a result was probable unless he had a reproducible finding on a follow-up short-term scan. [ 177 ] Notwithstanding the fact that conclusively there were abnormal and worrying signs with the flexed left hand, Dr. Adey still regarded the scan as incomplete because of the lack of the visualization of the left forearm regardless of what the appearance of the left hand was. Confirmation that the contents of Dr. Adey’s report meet the standard of practice [ 178 ] Dr.

Romano indicated that in a community setting, the second trimester ultrasound is normal in 95 percent of the cases. With respect to the remaining small percentage, he would place them into the category of (

i) a questionable abnormality, which he described as one arising when a sonologist could not view what was being screened ultimately requiring another ultrasound in the community in several days to re-look at the area in question; (ii) a probable abnormality; or (iii) a definite abnormality. Probable or definite abnormalities would require that the patient be refer

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