





CITATION:
Suwary v. Women's College
          Hospital, 2011 ONCA 676



DATE: 20111031



DOCKET: C50772



COURT OF APPEAL FOR ONTARIO



Simmons, Armstrong and LaForme JJ.A.



BETWEEN



Robert Gregory Suwary and Kylie Suwary, minors by their
          Litigation Guardian, Kimberly Long-Suwary, Robert Edward Suwary, Katie
          Buchanan and the said Kimberly Long-Suwary, personally



Plaintiffs (Appellants)



and



Women's College Hospital, Clifford Librach,
Sarah
          Ferguson, Sharon Unger
and Laura Lee



Defendants (Respondents)



Paul J. Pape and Shantona Chaudhury for the appellants



Frank McLaughlin, Ken Morris and Sharon Wilmot for the
          respondent Clifford Librach

Michael K. McKelvey and Anna L. Marrison for the respondents Women's
          College Hospital and Laura Lee



Heard: April 26, 27 and 28, 2011



On appeal from the judgment of Justice Patrick Moore of the
          Superior Court of Justice dated June 19, 2009 with reasons reported at 2009
          CanLII 31985 (Ont. S.C.).



By the Court
:



I.         Introduction

[1]

The appellants appeal from
    the dismissal of their action for medical negligence relating to Robbie
    Suwarys birth.

[2]

Robbie was born at
    Womens College Hospital on January 29, 1999. Tragically, he was deprived of
    oxygen before birth and, as a result, suffers from cerebral palsy.

[3]

The central issues on
    appeal relate to the medical management of Robbies delivery between 3:30 a.m.,
    when his mother began pushing, and 4:06 a.m., when Robbie was born.

[4]

Robbies mother
    entered the second, active, stage of labour at around 3 a.m. At 3:30 a.m., Dr.
    Librach, the attending obstetrician, told her to begin pushing. Robbie was a
    large baby (just over 10 lbs.) and was presenting in the face-up position,
    potentially requiring manual rotation to the face-down position before birth.
    Nonetheless, all appeared fine to that point.

[5]

Between 3:30 a.m. and
    3:41 a.m., a fetal heart monitor attached to Robbies mothers abdomen revealed
    some decelerations in the fetal rate. Expert evidence at trial indicated decelerations
    with contractions are not uncommon in the second stage of labour. However, depending
    on their type and duration, decelerations can be a cause for concern, and, in
    some cases even alarm.

[6]

At 3:41 a.m., Dr.
    Librach applied a vacuum extractor in an effort to expedite Robbies delivery.
    Soon after the vacuum was applied, the fetal heart rate became abnormally low and
    remained that way for a lengthy period of time  in medical terms, the fetal
    heart rate became bradycardic.

[7]

At 3:49 a.m., after
    three pulls on the fetal head, Dr. Librach removed the vacuum. The head had not
    made much progress and the fetal heart rate was still bradycardic. Dr. Librach
    concluded the situation was now an emergency. He transferred Robbies mother from
    the labour room to an operative delivery room. At 4:01 a.m., Dr. Librach applied
    forceps to rotate the fetus to the face-down position. Robbie was born at
    4:06 a.m.

[8]

Robbie was not
    breathing when he was born and he had no detectable heart rate. He took his
    first breath five minutes after delivery. Unfortunately, the oxygen deprivation
    he suffered caused permanent brain damage, which, in turn, led to cerebral
    palsy. As was noted by the trial judge, Robbies cerebral palsy will affect him
    and those who live with him and care for him throughout his life.

[9]

The Suwarys sued Dr.
    Librach, the hospital, the attending obstetrical nurse (Nurse Laura Lee), an
    obstetrical resident (Dr. Sarah Ferguson) and a neonatal fellow (Dr. Sharon
    Unger), claiming damages for medical negligence.
[1]
After a 38-day trial dealing exclusively with liability issues, Moore J.
    dismissed the Suwarys action.

[10]

There was no real dispute at trial that Robbies brain injury was the
    result of an acute near total asphyxia
[2]
likely caused by an occult prolapse of the umbilical cord.
[3]

[11]

However, the appellants argued that it was the application of the vacuum
    that triggered the bradycardia that began around 3:41 a.m. In addition, and among
    other things, the appellants claimed that Dr. Librach committed the following three
    breaches of the standard of care:

·

he failed to apply a fetal scalp clip (an internal fetal heart
    rate monitor attached to the fetal scalp) when faced with an uninterpretable
    fetal heart rate tracing from an external heart rate monitor;

·

he applied the vacuum extractor without an indication; and

·

he failed to anticipate and make proper preparations for the
    possibility that the attempt at vacuum delivery in the labour room might fail.

[12]

Various expert witnesses gave opinion evidence about the standard of
    care issues. All agreed that the standard of care requires that there be an
    indication for applying a vacuum extractor. The experts opinions about whether
    such an indication existed were premised, to a large extent, on paper tracings
    of the fetal heart rate produced by the external fetal heart rate monitor
    attached to Robbies mothers abdomen.

[13]

The experts disagreed about whether gaps in the paper tracings made the
    tracings uninterpretable. The gaps occurred during the period between 3:30
    a.m., when Robbies mother started pushing, and 3:41 a.m., when Dr. Librach
    applied the vacuum.

[14]

The disagreement over gaps in the tracings, in turn, led to disagreement
    about whether the standard of care required Dr. Librach to apply a fetal
    scalp clip so he could obtain better fetal heart rate information before
    deciding on delivery options.

[15]

The external monitor that was used to monitor the fetal heart rate had
    three types of output: a visible paper tracing; a digital readout; and an
    audible output.

[16]

The trial judge essentially disregarded the expert evidence concerning
    the interpretability of the fetal heart rate tracings  he determined that the
    expert witnesses had an incomplete factual underpinning for the opinions they
    offered because they had no information about the audible or digital output
    from the external fetal heart rate monitor.

[17]

Importantly, the trial judge also found that the evidence did not
    establish whether Dr. Librach, Nurse Lee or Dr. Ferguson could see the digital
    readout from their location(s) in the delivery room. Further, he said there was
    no evidentiary basis upon which [he could] find that people in the room would
    have heard all or any of the audible output normally generated by the monitor
    in times coincident with tracing gaps.

[18]

Nonetheless, the trial judge accepted Dr. Librachs evidence that he and
    others present in the labour room were well aware of fetal heart activity as
    the result of the visual and audible outputs from the [external fetal heart
    rate] monitor.

[19]

The trial judge dealt with standard of care issues and causation in
    various sections of his reasons.

[20]

Early in the analysis portion of his reasons, when discussing informed
    consent, the trial judge noted that Dr. Librach appreciated that Robbie had
    endured several deep decelerations [drops in the fetal heart rate] and  was
    concerned about hypoxia when he applied the vacuum.

[21]

Later in his analysis, the trial judge addressed the causation and
    standard of care issues vis-à-vis Dr. Librach in a section of his reasons entitled
    Allegations against the Defendants.

[22]

In the trial judges view, the asphyxial insult that led to Robbies
    brain injury began around 3:30 a.m. shortly after Robbies mother began
    pushing. Further, he concluded that the deep and prolonged decelerations of
    the fetal heart that occurred between 3:41 and 3:49 a.m. (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay applying the vacuum and apply a scalp clip instead.

[23]

As for Dr. Librachs role in these events, the trial judge found that
    there was no credible evidence supporting a case for application of a scalp
    clip before [3:41 a.m.]. In any event, it was sheer speculation to
    predict whether Robbies outcome would have been different, let alone more
    favourable had Dr. Librach opted to delay the vacuum and to apply a scalp clip
    to obtain more information about the fetal heart rate.

[24]

The trial judge observed that the asphyxial insult produced a clinically
    emergent situation. In such circumstances, Dr. Librach acted appropriately in
    deciding to apply the vacuum rather than embark on further diagnosis. The trial
    judge found no merit in the appellants submission that it was inappropriate to
    apply the vacuum in a labour room.

[25]

In the end, the trial judge expressed the view that Dr. Librach could
    not have determined the cause of the insult that produced Robbies brain injury
    prospectively. He concluded that the respondents neither caused nor contributed
    to the insult and/or the injury.

[26]

The appellants raised multiple issues on their appeal against the
    dismissal of their claim against Dr. Librach, which we have summarized in
    Appendix A. In our view, it is unnecessary that we deal with all of these issues
    in order to dispose of the appeal. For the reasons that follow, we draw the
    following two conclusions that require us to allow the appeal with respect to
    the claim against Dr. Librach:

i)

the trial judge made inconsistent findings concerning the fetal heart
    rate evidence thereby undermining his finding that that everyone in the room
    was well aware of fetal heart rate activity as the result of visual and audible
    outputs from the monitor; and

ii)

the trial judge failed to explain the basis for his conclusion that the
    deep and prolonged decelerations of the fetal heart that occurred between 0341
    and 0349 (during the time that Dr. Librach attempted vacuum extraction) would
    have occurred even if Dr. Librach had opted to delay vacuum and to apply a
    scalp clip. We can find no evidentiary basis for this conclusion.  Without
    this finding, we are not satisfied that the trial judges conclusion on
    causation would have been the same.

[27]

The appellants pursued only one issue on their appeal against the
    dismissal of their claims against Nurse Lee and Womens College Hospital. For
    reasons we will explain we do not give effect to that ground of appeal.

II.        Background

i)

Obstetrical History relevant to Robbies Birth

[28]

Robbies mother, Kimberley Long-Suwary, and her husband, Robert Suwary,
    initially consulted Dr. Librach to obtain fertility treatment. With Dr.
    Librachs help, Ms. Long-Suwary bore two children: Kylie, who was born in 1996,
    and Robbie, who was born in 1999.

[29]

Kylie was a large baby (10 lbs. one oz.), but was delivered successfully
    with the assistance of a vacuum extractor.

[30]

Ms. Long-Suwary attended Womens College Hospital on January 28, 1999 by
    pre-arrangement to have Robbies birth induced. Once she was fully dilated, an
    obstetrical resident, Dr. Ferguson, ruptured her membranes around 3 a.m. on
    January 29, 1999, signifying the beginning of the second, active stage of
    labour.

ii)

The Gaps in the
Paper
Tracing
s
    of the Fetal Heart Rate during the Second Stage of Labour

[31]

During the second stage of labour, maternal contractions and the fetal
    heart rate were to be tracked by external monitor(s) attached to Ms.
    Long-Suwarys abdomen  a tocodynamometer to track maternal contractions and a
    transducer to track the fetal heart rate. From 3:32 a.m. onward, no maternal
    contractions were recorded by the tocodynamometer and it appears that that
    monitor may have fallen off. After 3:32 a.m., Nurse Lee tracked maternal
    contractions manually by palpating Ms. Long-Suwarys abdomen.

[32]

As we have said, the transducer tracking the fetal heart rate had three
    sources of output: a visible paper tracing (which also traced tocodynamometer
    output when available), a digital readout, and an audible output.

[33]

Soon after Ms. Long-Suwary began pushing, significant gaps appear in the
    paper tracings produced by the transducer.

[34]

In the 12 one-minute blocks of the tracings from the
    notation 0330 pushing to the notation 0341 vacuum applied by Dr. Librach,
    there are approximately seven minutes of gaps showing no tracing whatsoever 
    and no continuous area of tracing

that exceeds 45 seconds.

[35]

It is these gaps in the paper tracings that led to disagreement among
    the experts (Dr. Harman and Dr. McGrath for the appellants, and Dr. Davies for
    Dr. Librach) concerning whether the paper tracings were interpretable.

iii)

Evidence
Relating to Robbies Birth

[36]

While in the labour room, Nurse Lee made contemporaneous notes charting
    the active phase of Ms. Long-Suwarys labour. The contemporaneous notes refer
    to decelerations in the fetal heart rate at 3:35 and 3:40 a.m. In both
    instances, the fetal heart rate recovered to its previous level within a short
    period of time:

·

3:20 [a.m.]  148 [beats per minute]

·

3:30 [a.m.]  - 140 [beats per minute]

·

3:35 [a.m.]  -

50-70 ^ 140 [beats per minute]

·

3:40 [a.m.] -

50-70 [beats per minute]

·

3:41 [a.m.] - 140-145 [beats per minute].

[37]

Nurse Lee made additional notes following Robbies birth (late
    entry notes) that set out the basic chronology of events between 3:20 a.m. and
    3:41 a.m., when Dr. Librach applied the vacuum in the labour room. The late
    entry notes refer to two additional decreases in the fetal heart rate at 3:36
    and 3:37 a.m. and also document the extent of the fetal heart rate recovery:

·

0320 Dr. Librach arrived V/E [vaginal examination] fully dilated

·

0330 starting to push at Dr. Librach's request. Dr. Librach
    present.

·

0336 FH [fetal heart rate] down to 78 up to 140 [beats per
    minute]

·

0337 FH 74-95 [beats per minute] with pushing

·

0338 FH 125-150 [beats per minute]

·

0340 difficulty picking up FH. Dr. Librach aware and requested
    vacuum

·

0341 vacuum applied by Dr. Librach FH down to 55 [beats per
    minute] up to 140-145 [beats per minute].

[38]

According to Dr. Librach, following the application of the vacuum, the
    fetal heart rate dropped to between 60 and 80 beats per minute and stayed there
    for a prolonged time. There was a brief recovery at around 3:45 a.m. and then
    another deceleration with vacuum application followed by another recovery.
[4]
After three pulls on the vacuum with contractions the fetal head did not come
    down and rotate, and the attempt to expedite delivery using the vacuum was
    declared a failure at 3:49 a.m.

[39]

The trial judge found that because of the unanticipated bradycardia, Dr.
    Librach decided that this was now an emergent situation. It was necessary that
    he immediately transfer Ms. Long-Suwary to an operative delivery room where
    another form of delivery could be attempted.

[40]

To facilitate Ms. Long-Suwarys transfer to the delivery room, the
    labour room transducer tracking the fetal heart rate was removed and a new
    transducer was attached once she arrived in the delivery room at 3:58 a.m.
    Following her arrival, the fetal heart rate remained abnormally low until 4:01
    a.m. when Dr. Librach applied forceps to rotate the fetus to a face-down
    position. Dr. Ferguson and Dr. Librach then completed the delivery and Robbie
    was born at 4:06 a.m.

[41]

After Robbie was born, Dr. Librach prepared a handwritten delivery
    summary and dictated an operative report, both of which referred to
    decelerations in the fetal heart rate as the reason for applying the vacuum.
    The delivery summary includes the following notations:

Pushing at fully  ROP
[5]
position
Decels with contractions therefore vacuum applied
, did not
    come with 3 contractions, Transferred to Delivery room for forceps rotation to
    ROA
[6]
FH [up] as soon as head rotated. Then delivered easily. [Emphasis and
    footnotes added.]

[42]

The operative note refers to a Mid-forceps delivery and includes a pre-operative
    diagnosis explaining the need for that procedure: Fetal distress, posterior
    position. Like the delivery summary, the operative note refers to
    decelerations in the fetal heart rate as the reason for applying the vacuum:

At the time of her assessment at full dilation the
    baby's head was right occiput posterior position and she began to push. With
    contractions she pushed and there were decelerations noted by external
    monitoring.
After a few contractions the decelerations persisted and it was
    decided to aid in her delivery
. [Emphasis added.]

iv)

Dr. Librachs Evidence

[43]

The crux of Dr. Librachs evidence in-chief at trial was that he applied
    the vacuum because, after Ms. Long-Suwary began pushing, she began to have
    decelerations with contractions and recovery after those decelerations became
    more slow with time. The depth of the decelerations was quite deep, down to
    at least 80 or below  and Dr. Librach was becoming concerned because
    of the persistence of these deep decelerations.

[44]

As a result of his concern, Dr. Librach examined Ms. Long-Suwary. The
    fetal head was engaged but in the face-up position. He recalled thinking, we
    are not going to have a delivery imminently. Accordingly, because he was
    becoming concerned about the persistent and recurrent deep decelerations, he
    decided to expedite delivery. Although he considered putting on a scalp clip,
    he decided not to as it would take time and merely confirm what he already
    knew.

[45]

A key issue at trial was Dr. Librachs credibility. Following his
    examination in-chief, he was cross-examined over approximately five days. Among
    other things, he was challenged on alleged discrepancies between his trial
    evidence and his evidence at his examination for discovery.

[46]

The appellants maintained that Dr. Librachs discovery evidence
    indicated he was not particularly concerned about the status of the fetal heart
    rate before he applied the vacuum  he saw some evidence of decelerations with
    contractions but overall he was reassured by the fact that following the
    decelerations the fetal heart rate returned to baseline. He applied the vacuum
    because he wanted to aid in the delivery.

[47]

The appellants argued that, at its core, Dr. Librachs discovery
    evidence did not reveal a proper basis for applying the vacuum, a form of
    operative vaginal delivery.

[48]

Despite Dr. Librachs change in evidence, the trial judge found him a
    credible witness.

v)

Evidence about the Classification of Fetal Heart Rate Decelerations

[49]

The classification of fetal heart rate decelerations was a significant
    topic of expert testimony. According to Dr. McGrath, there are three main types
    of decelerations and they are defined in terms of their relationship to uterine
    contractions. The classifications are: early, variable and late.

[50]

On a tracing, early decelerations look like a contraction upside down.
    They essentially mirror the contractions, with their nadir at the peak of the
    contraction  and they resolve when the contraction ends. Variable
    decelerations are variable in their timing and appearance. They can occur with
    or following contractions. While their duration can vary, they generally
    commence and recover very rapidly. Late decelerations begin during a
    contraction, have their nadir following the peak of the contraction and resolve
    after the contraction.

[51]

Dr. McGrath testified that decelerations occurring at the same time as
    pushing are common in the second stage of labour. While they may be deep, they
    are not prolonged and would by themselves likely not indicate operative vaginal
    delivery  meaning use of a vacuum or forceps. As pushing coincides with
    contractions, this evidence appears to refer to early decelerations.

[52]

Significantly, Dr. McGrath agreed during his testimony that deep,
    prolonged variable decelerations tend to accompany the early stages of severe
    cord compression.

III.      The Trial Judges Reasons

[53]

For the purposes of this appeal, the key portions of the trial judges
    reasons are those relating to fetal heart rate evidence, standard of care and
    causation. We will set out the trial judges reasons relating to fetal heart
    rate evidence in detail when discussing our conclusion on that issue. For now,
    we will provide a brief summary of his credibility findings and set out his
    findings concerning standard of care and causation.

i)
The Trial Judges
    Credibility Findings

[54]

The trial judge found Dr. Librach, Dr. Ferguson and Nurse Lee to be
    credible witnesses. As for the expert witnesses, the trial judge said he valued
    the input of Dr. McGrath (for the appellants) and Dr. Davies (for the respondents).
    He found that these two witnesses gave objective and balanced accounts of
    their views. On the other hand, he found Dr. Harman to be a partisan witness
    who offered standards of care  that did not stand up to scrutiny in
    cross-examination.

ii)        The Trial Judges Findings about
    Standard of Care and Causation

[55]

The trial judge structured his reasons under a variety of headings that
    did not include standard of care and causation as free-standing issues. In our
    view, his findings on these subjects are found under at least two headings. As these
    findings  are important to the issues on the appeal against the dismissal of
    the claim against Dr. Librach, we will set out his findings on the first two
    alleged breaches of the standard of care and causation in full:

Informed Consent

239
At the time that Dr. Librach recommended
    use of the vacuum,
he appreciated that Robbie had endured several deep
    decelerations and Dr. Librach was concerned about hypoxia
45
and its
    clinical sequelae and he knew that time was becoming of the essence
. I
    accept as reasonable that he exercised his judgment in favour of a brief
    discussion with Kimberly and that he chose not to specifically discuss the
    risks associated with a C-section then, as it was not called for... [Emphasis
    added.]

240
The experts agreed that the scenario
    that followed upon the application of the vacuum in this case was one that
    could not have been predicted and it is not one that I find ought to have been
    discussed with Kimberly in advance. No expert was heard to opine that C-section
    should have been offered prior to 0341

Allegations Against the Defendants

255
The evidence that I accept and value
    confirms that a scalp clip, also referred to as a scalp electrode, is a fetal
    heart monitoring device that is designed to be screwed into the fetal scalp in
    order to obtain information about fetal heart activity. It is not a treatment
    tool. It is a diagnostic device. It cannot be used at the same time as a vacuum
    is in use.

256
I cannot find that attaching a scalp
    clip could have revealed normal fetal heart activity after 0341 and there is no
    credible evidence supporting a case for application of a scalp clip before
    0341.

257
Even Dr. Harman stops short of
    saying that fetal head compression, cord prolapse or both occurred only after
    0341; as such, I must find that the deep and prolonged decelerations of the
    fetal heart that occurred between 0341 and 0349 (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay vacuum and to apply a scalp clip.

258
It is sheer speculation to predict
    whether Robbie's outcome would have been different, let alone more favourable,
    had this theoretical alternative path been followed.

259
In my view, the asphyxial insult
    that lead to Robbie's brain injury incepted shortly after Kimberly entered the
    second stage of labour and began pushing, around 0330.
50
The insult
    produced the deep decelerations that Dr. Librach and Nurse Lee observed, two of
    which Nurse Lee also recorded.

260
The insult produced a clinically
    emergent situation that Dr. Librach analyzed and applied his best clinical
    judgment to. He determined that a vacuum and not further diagnostic
    intervention was called for. I agree.
51
I cannot fault Nurse Lee for
    assisting Dr. Librach fully in responding to the situation.

F/N 45
A view supported by the opinion of
    Dr. Davies who read the relevant portion of the tracing and testified (on 2
    April 09, p. 139) that between 0332 and 0341 the fetal heart rate was
    non-reassuring and (p. 124) the tracing showed repetitive decelerations
    demonstrating a fetus that "is either in an hypoxic environment or an
    environment that has the potential for hypoxia".



F/N 50
Drs. McGrath and Davies agree that
    the heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect,
    that the sudden change began shortly after Kimberly started to push and
    Robbie's injuries began during the last 30 minutes before his birth.

F/N 51
Agate v. Burrows,
[1988] B.C.J. No.
    586 (B.C.S.C.) at p. 8.

IV.      Analysis

1) The Trial Judge Made Inconsistent
    Findings concerning the Fetal Heart Rate Evidence

i)         Introduction

[56]

Much time and energy at trial was devoted to leading evidence about the
    state of the fetal heart rate between 3:30 and 3:41 a.m., when Dr. Librach
    applied the vacuum extractor.

[57]

The appellants submit that the trial judge found, at paras. 85 to 87 of
    his reasons, that the expert evidence concerning whether the paper tracing was
    interpretable was conflicting and that he also concluded, at paras. 86 and 215,
    that the output from the fetal heart rate monitor, both audible and visual, was
    uninterpretable.

[58]

The appellants contend that, having made those findings, the trial judge
    made a palpable and overriding error by accepting, at para. 222, Dr. Librachs
    evidence that everyone in the labour room was well aware of fetal heart rate
    activity based on the output from the fetal heart rate monitor and that his
    (Dr. Librachs) decision to apply the vacuum was informed by that information.

[59]

This finding, in turn, formed the underpinning of the trial judges
    subsequent conclusions that Dr. Librach perceived deep persistent decelerations
    of the fetal heart rate and that that information justified Dr. Librachs
    decision to apply the vacuum rather than attach a fetal scalp clip.

[60]

The appellants contend that as a result of the trial judges palpable
    and overriding error in accepting Dr. Librachs evidence that everyone in the
    labour room was well aware of fetal heart rate activity, the trial judge made
    two additional errors. First, he failed to resolve the conflict in the expert
    evidence concerning whether the paper tracing was interpretable. Second, he
    failed to determine whether the standard of care required application of a
    scalp clip.

[61]

For reasons that we will explain, we accept these submissions.

ii)        The Trial Judges Reasons

[62]

At paras. 85 to 87 of his reasons, in the concluding portion of a preliminary
    section of the reasons entitled Labour and Delivery Records, the trial judge
    made statements about the interpretability of the fetal heart rate tracings
    that the appellants say are inconsistent with the trial judges subsequent
    finding at para. 222 that everyone in the [delivery] room was well aware of
    fetal heart activity as the result of the visual and audible outputs from the
    monitor. According to the appellants, para. 87 also confirms that the trial
    judge was satisfied that the expert witnesses disagreed about whether the paper
    tracings were interpretable:

85
What is not clear from a reading of
    these notes and records and is a central feature of this case is that
the
    external electronic monitor that was tracking both fetal heart rate and
    maternal uterine contraction activities

became largely
    un-interpretable as the final stage of labour unfolded
. As well, from about
    0332 forward to about 0353, when the monitor was removed to facilitate transferring
    Kimberly  the tracing of maternal uterine activity is not recorded by the
    external monitor at all

86
In this case, not only did the
    monitor fail to provide continuous evidence of both sets of activity but
it
    also failed to provide consistent information capable of meaningful
    interpretation regarding the fetal heart rate
and therefore the well-being
    of the fetus during many minutes before Robbie's birth.

87
The loss of maternal tracing is
    clear.
The tracing of the fetal heart rate is less so. The experts do not
    agree on whether or at what point(s) the tracing became un-interpretable
.
    [Emphasis added.]

[63]

The trial judges subsequent findings about the interpretability of the
    output from the fetal heart rate monitor appear at paras. 215 and 222 in a part
    of the analysis section of his reasons entitled Fetal Heart Rate Evidence. However,
    before reviewing these paragraphs, it is important to put them into context.

[64]

On our reading of it, there are at least three components of the Fetal
    Heart Rate Evidence section of the trial judges reasons, which consists of
    paras. 206 to 234.

[65]

In the first component, the trial judge found the fetal heart rate
    evidence fraught with problems. He noted that the fetal heart rate monitors
    were not produced in evidence. While he heard evidence of a lag time of as much
    as two minutes in the appearance of printed information on the paper tracings
    produced by the fetal heart rate monitor, he was not told whether there was a
    lag time in the digital or audible outputs from the monitor.

[66]

Further, the evidence did not establish whether Dr. Librach, Dr.
    Ferguson or Nurse Lee could see the monitor readout in the labour room and the
    position of the monitor readout screen in the delivery room was not described.

[67]

In addition, there were significant gaps in the paper tracings produced
    by the fetal heart rate monitor during the critical time frame after 3:30 a.m.
    Moreover, Dr. Librach, Dr. Ferguson and Nurse Lee all acknowledged that audible
    sounds from the fetal heart monitor were not continuous  -- in other words,
    there were also gaps in the audible output from the fetal heart rate monitor.

[68]

Para. 215 forms part of this first component of the  Fetal Heart Rate
    Evidence section of the trial judges reasons and reads as follows:

215
As discussed elsewhere in these reasons,
    there are gaps in the tracing on the fetal heart monitor strip. The evidence is
    unclear on just what one might hear in the labour room when the monitor is not
    recording a tracing. Dr. Librach, Nurse Lee and Dr. Ferguson were all in the
    labour room and all admitted that audible sounds from the fetal heart monitor
    were not continuous.
There is no evidentiary basis upon which I can find
    that people in the room would have heard all or any of the audible output
    normally generated by the monitor in times coincident with tracing gaps.
[Emphasis
    added.]

[69]

Before concluding the first component of the Fetal Heart Rate Evidence,
    the trial judge went on to note that the fact witnesses who were involved in
    the delivery tended to blur the distinction between audible and visual signals
    produced by the monitor and moved between what they could see and hear on the
    monitor readout and what was visible on the tracings. The trial judge concluded
    that in so doing the witnesses overlooked the fact that all three sources of
    information were not instantly available.

[70]

Moreover, Nurse Lee readily admitted that the times she wrote on the
    paper tracings, which was the only indication of time on the tracings, could be
    out by one or two minutes in each case.

[71]

In the result, the trial judge concluded that he must take care in
    considering the evidence of what witnesses saw on and heard from the monitor,
    because even if a witness saw or heard audible or digital readout information
    of relevance, that witness simply could not have contemporaneously seen the
    related heart activity depicted on the tracing.

[72]

In the second component of his reasons concerning the Fetal Heart Rate
    Evidence, the trial judge was critical of the expert evidence purporting to
    opine on standard of care issues based on hospital records, fetal heart rate
    tracings and discovery evidence. He pointed out that it is not now possible to
    divine from a review of the labour and delivery records the extent to which
    anyone in the labour room looked at the monitor display, at the tracing or
    listened to audible sounds in the course of making professional judgements
    while in the labour room.

[73]

The trial judge commented at para. 220: Nevertheless, the experts who
    opined about standards of care issues did just that; they looked at the WCH
    records and particularly at the fetal heart rate tracings for the factual
    foundation to support their expert opinions.

[74]

Further, the trial judge observed that although the experts (with the
    exception of Dr. Harman) reviewed Dr. Librachs discovery transcripts, neither
    the portions of the discovery transcripts read in nor other evidence at trial
    describes the extent to which digital readout-based information or audible
    sounds from the monitor informed decisions made by the doctors and nurses.

[75]

In the final component of his reasons concerning the Fetal Heart Rate
    Evidence, at paras. 222 and 223, the trial judge accepted Dr. Librachs trial
    evidence that everyone in the room was well aware of fetal heart rate activity
    and that his decision to apply the vacuum was informed by information from the
    fetal heart rate monitor. In doing so, the trial judge also observed that the
    experts had an incomplete factual underpinning for the opinions they offered
    because they did not have the same information as Dr. Librach and were not in a
    position to put themselves in his shoes:

222
Upon the trial evidence of Dr.
    Librach, however, his decision to apply the vacuum was indeed informed by
    information he saw and heard from the labour room monitor.
He maintained at
    trial, and I accept, that everyone in the room was well aware of fetal heart
    activity as the result of the visual and audible outputs from the monitor. The
    experts had no information about audible or digital display information at all
    and, therefore, an incomplete factual underpinning for the opinions they
    offered
.

223
In fact,
none of the experts
    reviewing this case could put themselves into the shoes of Dr. Librach because
    they did not have objective, quantifiable and complete evidence of exactly what
    Dr. Librach saw and heard from the heart monitor and from his patient in the
    critical timeframe at issue
. [Emphasis added.]

iii)       Discussion

[76]

We are unable to reconcile the statements made by the trial judge in paras.
    85-87 and 215 with his finding in para. 222 that everyone in the [labour] room
    was well aware of fetal heart activity as the result of the visual and audible
    outputs from the monitor.

[77]

Para. 86 includes a clear statement that the fetal heart rate monitor
    failed to provide consistent information capable of meaningful interpretation
    regarding the fetal heart rate and therefore the well-being of the fetus during
    many minutes before Robbies birth.

[78]

Although it might be argued that paras. 85  87 were merely introductory
    and in any event were intended to address only the paper tracing output from
    the fetal heart rate monitor and that the trial judge simply misspoke himself
    in referring to the output from the monitor generally in para. 86, that interpretation
    is not confirmed by the last sentence of para. 215.

[79]

The last sentence of para. 215 reads as follows: There
is no
    evidentiary basis
upon which I can find that people in the room would have
    heard
all or any of the audible output
normally generated by the monitor
    in times coincident with tracing gaps (emphasis added).

[80]

Read in context, the plain meaning of the last sentence of para. 215 is
    that there was
no evidence
adduced at trial that would  permit the trial
    judge to conclude that Dr. Librach (and the others present in the labour room)
    heard audible output from the fetal heart rate monitor during periods that
    coincided with the gaps in the paper tracings produced by the fetal heart rate
    monitor.

[81]

As the trial judge explained, the flaws in the fetal heart rate evidence
    precluded that conclusion. Although there was evidence of time lags of up to
    two minutes in production of the paper tracings emitted by the fetal heart rate
    monitor, there was no evidence concerning the timing of the audible output from
    the monitor. Was the audible output in real time? Or was there a time lag? If
    there was a time lag, was it the same as the time lag for the paper tracings?
    The trial judge simply did not know.

[82]

Before making the statement in the last sentence of para. 215, the trial
    judge had already observed that he did not know whether Dr. Librach (or the
    others present in the labour room) could see the fetal heart rate monitor from
    their location(s) in the labour room. The combined effect of that finding and
    the last sentence of para. 215, is that the trial judge had no evidentiary
    basis for concluding that Dr. Librach (or the others present in the labour
    room) had more information than the information provided by the paper tracings
    produced by the fetal heart rate monitor.

[83]

Yet the clear implication of para. 222 is that Dr. Librach and the
    others present in the labour room had more information than was available on
    the paper tracings  a finding that is inconsistent with the last sentence of
    para. 215.

[84]

Moreover, in the light of his finding at para. 215, in our view, the
    trial judge was required to assess the expert evidence relating to the
    interpretability of the paper tracings produced by the fetal heart rate monitor
    before drawing a conclusion concerning whether he accepted Dr. Librachs
    evidence that everyone in the room was well aware of fetal heart activity as
    the result of the visual and audible outputs from the monitor. The trial
    judges determination of whether the paper tracings were interpretable was
    critical to his assessment of both the credibility and the reliability of the
    fact witnesses evidence.

[85]

If Dr. Librach (and the others present in the labour room) had no more
    information than the information provided by the paper tracings produced by the
    fetal heart rate monitor and if the paper tracings were uninterpretable, that
    undermined both the reliability and credibility of Dr. Librachs evidence that
    everyone in the room was well aware of fetal heart activity as the result of
    the visual and audible outputs from the monitor.

[86]

As the trial judges finding at para. 222 is inconsistent with his
    finding at para. 215 and as the trial judge failed to determine whether the paper
    tracings produced by the fetal heart rate monitor were interpretable, his finding
    that everyone in the room was well aware of fetal heart activity as the result
    of the visual and audible outputs from the monitor cannot stand.

[87]

Further, as that finding was integral to the trial judges conclusions
    concerning whether the standard of care required the application of a scalp
    clip and concerning whether there was an indication to apply the vacuum, those
    conclusions cannot stand.

[88]

In reaching these conclusions, we acknowledge that the Dr. Librach
    argued that, by the end of the trial, there was no real conflict in the expert
    evidence concerning the interpretability of the paper tracings. However, if
    that was the trial judges view, he was required to say so and explain the
    basis of his conclusion.

[89]

In addition, Dr. Librach argued that the trial judges findings were
    consistent with his findings on factual causation. Given that the asphyxial
    insult began just after 3:30 a.m., that supported the likelihood that Dr.
    Librach perceived what he said he perceived  persistent, deep decelerations of
    the fetal heart rate that raised a concern about hypoxia, and provided an
    indication to apply the vacuum.

[90]

We agree there is some force to this argument. That said, the fact that
    there was likely a problem with the fetal heart just after 3:30 a.m. does not
    mean that Dr. Librach was able to discern it based on the information he had 
    nor does it mean he was able to make a proper assessment of what delivery
    option to choose based on the information he had. In the light of his finding
    in the last sentence of para. 215, in our view, the trial judge was required to
    resolve the conflict in the expert evidence concerning whether the paper
    tracings produced by the fetal heart rate monitor were interpretable in order
    to make those determinations.

2) The Trial Judge Erred in Finding that the Deep
    and Prolonged Decelerations of the Fetal Heart that Occurred between 0341 and
    0349 (during the time that Dr. Librach attempted vacuum extraction) would have Occurred
    even if Dr. Librach had Opted to Delay Vacuum and to Apply a Scalp Clip.

[91]

The trial judge addressed causation at paras. 256 to 259 of his reasons.
    Central components of his reasoning were his findings that:

i) the asphyxial insult that
    led to Robbies brain injury began shortly after his mother entered the second
    stage of labour and began pushing, around 3:30 a.m.;

ii) the deep and prolonged
    decelerations of the fetal heart that occurred between 3:41 and 3:49 (during
    the time that Dr. Librach attempted vacuum extraction) would have occurred even
    if Dr. Librach had opted to delay the vacuum and to apply a scalp clip instead;
    and

iii) it was sheer speculation
    to predict whether Robbies outcome would have been different, let alone more
    favourable, had this theoretical alternative path been followed.

[92]

As these paragraphs of the trial judges reasons are central to this ground
    of appeal, we will set them out again in full:

256
I cannot find that attaching a scalp
    clip could have revealed normal fetal heart activity before 0341 and there is
    no credible evidence supporting a case for application of a scalp clip before
    0341.

257
Even Dr. Harman stops short of
    saying that fetal head compression, cord prolapse or both occurred only after
    0341; as such,
I must find that the deep and prolonged decelerations of the
    fetal heart that occurred between 0341 and 0349 (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay vacuum and to apply a scalp clip
.

258
It is sheer speculation to predict
    whether Robbie's outcome would have been different, let alone more favourable,
    had this theoretical alternative path been followed.

259
In my view, the asphyxial insult
    that lead to Robbie's brain injury incepted shortly after Kimberly entered the
    second stage of labour and began pushing, around 0330.
50
The insult produced the deep
    decelerations that Dr. Librach and Nurse Lee observed, two of which Nurse Lee
    also recorded.

FN 50
Drs. McGrath and Davies agree that the
    heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect, that
    the sudden change began shortly after Kimberly started to push and Robbie's
    injuries began during the last 30 minutes before his birth. [Emphasis added.]

[93]

On appeal, the appellants argued that all three components of the trial
    judges reasons on causation were in error. In our view, it is sufficient to
    dispose of the appeal by addressing only the last two components.

[94]

Assuming that it was open to the trial judge to find that the asphyxial
    insult began around 3:30 a.m., in our view, the evidence at trial did not
    support the trial judges finding that the bradycardia that began around 3:41
    a.m. would have happened in any event.

[95]

The trial judges finding that the bradycardia would have happened in
    any event appears to be premised solely on his conclusion that the asphyxial
    insult began shortly after 3:30 a.m. However, that chain of reasoning ignores
    undisputed evidence that Robbies heart rate became bradycardic suddenly and
    unexpectedly when the vacuum was applied. Significantly, it also ignores expert
    evidence that pulling on a prolapsed cord will quite likely cause a
    bradycardia.

[96]

For example, Dr. McGrath testified that, where there is an occult cord
    prolapse, pulling on the fetal head will most likely compress the umbilical cord
    and cut off circulation to the fetus. According to Dr. Davies, the fetus
    responds to oxygen deprivation with a lower heart rate. Bradycardia can occur
    when the fetus is either lower in the pelvis, or the umbilical cord becomes
    completely or almost completely occluded. In cross-examination, Dr. Davies
    agreed with a suggestion that it was his opinion
that the
    fetal heart rate fell as it did after the vacuum was applied because of the
    traction that occurred with the use of the vacuum  traction that compressed
    the umbilical cord further than any

compression that had occurred prior to the vacuum.  In his factum on
    appeal, Dr. Librach did not dispute the evidence that the vacuum likely
    compressed the cord further.

[97]

In our view, the timing of the bradycardia and the expert evidence we
    have referred to suggests the likelihood that the bradycardia was triggered by
    the application of the vacuum.

[98]

Moreover, while there was some evidence that a bradycardia could have
    occurred at some point in any event because of the cord prolapse and the
    progress of labour
[7]
,
    that evidence does not go far enough to support a finding that it was
likely
that a bradycardia would have occurred at 3:41 a.m.; nor does it support a
    finding that a bradycardia was inevitable prior to Robbies birth.

[99]

Once the finding that the bradycardia would have happened in any event
    is removed, it is not clear to us what finding the trial judge would have made
    concerning causation. If Dr. Librach breached the standard of care by applying
    the vacuum instead of applying a scalp clip, the question becomes would
    applying the scalp clip have made any difference.

[100]

Dr.
    Librachs evidence was that he decided to apply the vacuum extractor because he
    thought the fetal heart rate was concerning. Accepting that the asphyxial insult
    began around 3:30 a.m., the trial judge had to determine whether a applying scalp
    clip, which would have produced a clear fetal heart rate tracing, would have
    revealed a fetal heart rate that would have been more serious than concerning
    and that would have led Dr. Librach to choose an alternative form of operative
    delivery, namely forceps or c-section.
[8]

[101]

Dr.
    McGrath testified that it would take at least three to four minutes after
    making the decision to apply a scalp clip to obtain sufficient information to
    make a decision on an appropriate course of action. That means that if Dr.
    Librach had applied the scalp clip at 3:41 a.m., he could have been in a
    position to make a decision as early as 3:44 or 3:45 a.m.

[102]

Would Dr.
    Librach have made the decision to move to an alternative form of operative delivery
    instead of attempting a vacuum delivery if he had applied a scalp clip?

[103]

In our
    opinion, that was a question for the trial judge to answer taking account of
    the whole of the evidence and his finding that the asphyxial insult began
    around 3:30 a.m. Had he chosen an alternative form of operative delivery,
    bradycardia may not have occurred in the relevant interval  or, it may have
    occurred closer to the time of Robbies birth. Moreover, had Dr. Librach made the
    decision to use forceps, the total time to delivery could have been reduced by
    as many as five minutes. All of these factors could have reduced the risk or
    severity of injury to Robbies brain.

[104]

In all the
    circumstances, we are not persuaded that the trial judges conclusion on
    causation would necessarily have been the same but for his erroneous finding
    that the bradycardia that occurred at 3:41 a.m. would have happened in any
    event.

[105]

In the
    result a new trial is required.

3) The Appellants Appeal
    from the Dismissal of their Claims against Nurse Lee and the Hospital

[106]

At
    paragraph 254 of his reasons, under the heading Allegations Against the
    Defendants, the trial judge wrote:

Further, as I have found that Dr. Librach's
    clinical judgment was sound and in accord with applicable standards of
    obstetrical practice, the notion floated by Nurse Wood [an expert witness for
    the appellants] that Nurse Lee should have offered a scalp clip to Dr. Librach
    and/or objected to or enquired into the medical reasons supporting Dr.
    Librach's clinical decision are without merit.

[107]

The
    appellants argue that because the trial judge linked his findings concerning
    the liability of Nurse Lee and the Hospital to his finding concerning Dr.
    Librachs liability, if a new trial is ordered in relation to their claim
    against Dr. Librach, a new trial is required in relation to their claims
    against the Hospital and Nurse Lee.

[108]

We
    disagree. The trial judge made the finding set out above after making the
    following specific findings negating liability on the part of Nurse Lee (and
    therefore the Hospital):

·

Nurse Lee maintained vigilant overview of Ms. Long-Suwarys
    contractions and of the fetal heart activity;

·

the evidence did not support the appellants contention that
    additional resuscitative measures should have been undertaken, beyond the
    application of the wedge, a measure undertaken by Nurse Lee at 3:37 a.m.; and

·

the evidence did not support a finding that Nurse Lee departed
    from standards of nursing practice at or before the time Dr. Librach decided to
    apply and then applied the vacuum extractor, as these were medical matters and
    not within the scope of nursing practice.

[109]

Particularly
    in the light of the trial judges specific finding that the evidence did not
    support a finding that Nurse Lee departed from standards of nursing practice at
    or before the time Dr. Librach decided to apply and then applied the vacuum
    extractor, the finding set out above was unnecessary to the trial judges
    conclusion that the claims against Nurse Lee and the Hospital should be
    dismissed. We do not give effect to this ground of appeal.

IV.      The Trial Judges Discussion of the Expert Evidence

[110]

Before
    concluding our reasons, we wish to comment briefly on one aspect of the trial
    judges discussion of the expert evidence.

[111]

At the
    outset of his analysis, at paras. 174 to 183 of his reasons, the trial judge
    expressed his chagrin at the adversarial approach to trial preparation adopted
    by the experts in this case. He noted that, during the course of the trial,
    particularly during cross-examination, differences of expert opinion narrowed
    and large pools of overlapping opinion emerged.

[112]

The trial
    judge opined that opposing experts should meet before trial and attempt to
    assist the trial judge by narrowing their differences to the extent possible
    and, in any event, to identify the true and meaningful differences at issue.

[113]

In one key
    paragraph of this section of his reasons, the trial judge expressed his
    frustration at the experts failure to focus their evidence concerning the standard
    of care issues:

180
A central issue and perhaps the
    central issue in this case is whether Dr. Librach acted precipitously in
    applying the vacuum where and in the circumstances he did.
Had the experts
    met and discussed this case before trial, that issue would undoubtedly have
    arisen and a focus could/should have been placed on how to help the court to an
    understanding of the issue and the medical science pertaining to it
. Drs.
    McGrath and Davies each practice obstetric medicine in the same hospital in
    Kingston.
Their views on this issue differ and their experience regarding
    the time needed to deliver a baby at their hospital differed and yet they chose
    not to discuss their differences before attending to share them with this
    court; incredible
! [Emphasis added.]

[114]

In our
    view, this criticism of the expert witnesses was unfair and somewhat at odds
    with the trial judges other findings about Drs. McGrath and Davies. We do not agree
    with the trial judges criticisms of the expert witnesses in this case because
    they failed to meet with each other and review the issues prior to the trial.
    While it would no doubt be open to counsel to agree on such an approach, and
    while such an approach might well be desirable in some cases, that is a
    decision for counsel, not for the experts, to make.

V. Conclusion

[115]

Based on
    the foregoing reasons, we allow the appeal with respect to the appellants
    claim against Dr. Librach and order a new trial and we dismiss the appeal with
    respect to the appellants claim against Nurse Lee and the Hospital.

[116]

Nurse Lee
    and the Hospital are entitled to costs of the appeal if demanded. If the
    parties are unable to agree on any such costs, they may make brief written
    submissions to the panel.

[117]

The
    appellants may file brief written submissions on costs with respect to
    Dr. Librach within 15 days from the date of release of these reasons and
    Dr. Librach may respond within 15 days thereafter.

Signed:           Janet Simmons
    J.A.

Robert P.
    Armstrong J.A.


H. S. LaForme J.A.

RELEASED:  JS October 31, 2011


Appendix A

The appellants raised six main issues on appeal:

(1)

Did the trial judge err in law by failing to provide adequate reasons
    for his preference of Dr. Librachs evidence at trial to his conflicting
    evidence on discovery?

(2)

Did the trial judge make a palpable and overriding error in finding that
    Dr. Librach was well aware of fetal heart activity as a result of the
    visual and audio output from the monitor despite having found that the output
    from the fetal heart rate monitor, both visual and audible, was
    uninterpretable?

(3)

Did the trial judge make a palpable and overriding error by disregarding
    the expert evidence on the state of the fetal heart rate in the minutes before
    the vacuum was applied?

(4)

Did the trial judge err in law by failing to determine the standard of
    care in this case?

(5)

Did the trial judge make a palpable and overriding error in finding that
    Robbie's injuries were caused by an insult that began at 3:30 a.m., and that
    Dr. Librachs response to the situation therefore neither caused nor
    contributed to the insult and/or the injury?

(6)

Did the trial judge err in failing to decide whether Robbies delivery
    involved risk factors that Dr. Librach had to take into account?

In advancing their arguments concerning these issues,
    the appellants also submitted that the trial judge decided the case
    retrospectively; made contradictory findings; made palpable and overriding
    errors of fact; drew analysis-free conclusions; and either failed to address or
    misunderstood various aspects of the appellants case.





[1]
The Suwarys claims against Drs. Ferguson and Unger were dismissed prior to
    trial.



[2]
This type of insult involves a very abrupt and almost complete interruption of
    the blood supply to the fetal brain.



[3]
The trial judge said prolapse describes a squeezing or compression of the
    umbilical cord such that the flow of blood through the cord  is impeded. He
    explained that occult describes a condition that cannot be ascertained from a
    physical examination of the patient. The evidence at trial indicated that the
    fetal heart rate declines in response to oxygen deprivation, which is caused by
    a reduced blood flow, and that this response varies in relation to the degree
    of compression.



[4]

Nursing notes revealed the following fetal heart rates in the
    interval between 3:41 and 3:49 a.m.: 3:41 FH down to 55 up to 140-145; 3:42 FH
    52 per 60 seconds Patient pushing with contractions 2-3 min; 3:43 FH 68  70
    per 60 seconds; 3:44 FH 60  62 pushing; 3:45 FH increasing 64 up to 124; 3:47
    FH down to 68 up to 110 pushing; 3:48 FH 85  110; 3:49 vacuum removed V/E by
    Dr. Librach OP position.



[5]

ROP means Right Occiput Posterior or face-up position.



[6]

ROA means Right Occiput Anterior or face-down position.



[7]
Dr. McGrath testified that one of the risks of cord prolapse if you do nothing
    is that nature itself causes compression of the cord and can compromise gas
    exchange. He also stated [y]ou will certainly aggravate it when you pull on
    the head, but he did not rule out the prospect that a bradycardia would have
    occurred in any event.

In addition, Dr. Macnab (a paediatrician and
    neonatologist called by the appellants) testified that where there are cord
    problems, the progress of labour can worsen cord compression.  According to Dr.
    Davies, the fetal heart rate returned to normal after Dr. Librach performed the
    forceps rotation, likely because the forceps rotation alleviated the cord
    compression and restored blood flow to the fetus.



[8]
For example, Dr. McGrath testified that if the occult cord prolapse occurred
    before the vacuum, a scalp clip probably would have shown the fetal heart
    changes that accompany the early stages of severe cord compression, which tend
    to be deep, prolonged, variable decelerations.


