


COURT OF APPEAL FOR ONTARIO

CITATION:
Gutbir v. University
    Health Network, 2012 ONCA 66

DATE: 20120202

DOCKET: C53132

Weiler, Armstrong and Hoy JJ.A.

BETWEEN

Zmora Gutbir, a mentally incapable person,
    and Tamar Gutbir and Yuval Gutbir, minors,
by their     Litigation
    Guardian, Shaya Petroff, Avraham
    Gutbir and Atalyah Gutbir

Plaintiffs (Respondents)

and

University Health Network
and R. Derek Nicholson

Defendants (
Appellant
)

Paul J. Pape and Tanya A. Pagliaroli, for the appellant

Gavin MacKenzie, Hilik Y. Elmaliah and Mark Hines, for
    the respondents

Heard: January 10, 2012

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated December 10, 2010.

Weiler
    J.A.:

NATURE OF APPEAL

[1]

Mrs. Atalyah Gutbir was in the 42nd week of pregnancy.  On the morning
    of January 10, 1984, she went into labour and was admitted to Toronto General
    Hospital (Toronto General) between 7 and 8 a.m.  Baby Zmora Gutbir was born
    at 3:45 p.m., blue, silent and in critical condition.  Her brain was
    permanently damaged.

[2]

Following a trial with a judge and jury, the appellant was found to have
    breached the standard of care based on the manner in which it had monitored the
    foetal heart rate of the baby.  The jurys finding was that this breach meant
    that foetal heartbeat abnormalities that should have been detected were not.  [Detection]
    would have allowed an earlier intervention, (birth of the baby), which could
    have prevented permanent brain injury. According to the jury, Zmoras brain
    injury occurred because she had been deprived of oxygen over a period of
    between one and three hours while in utero.  She now lives with cerebral palsy.

[3]

The appellant appeals the jurys findings of both breach of the standard
    of care and causation.  Damages are not in issue.  For the sake of
    completeness, we note that the appellant was ordered to pay damages of
    $5,500,000 to the respondent, Zmora Gutbir, $625,000 to each of the respondent
    parents, Avraham and Ataylah Gutbir, and costs on a partial and substantial
    indemnity basis.

[4]

For the reasons that follow, we dismiss the appeal.

THE STANDARD OF REVIEW APPLICABLE TO A JURY VERDICT

[5]

It is well-established that a jury verdict may be set aside only if the
    verdict is so plainly unreasonable and unjust as to satisfy the Court that no
    jury reviewing the evidence as a whole and acting judicially could have reached
    it:
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343.  Where there
    is some evidence to support the verdict, a jury will be accorded a high degree
    of deference.

ISSUES ON APPEAL

[6]

The appellant seeks an order setting aside the judgment and dismissing
    the action.  The appellant argues that there was no evidence upon which the
    jury could find that the appellant fell below the standard of care required of
    it in attending to the respondent.  More specifically, the appellant asserts
    that the nurse attending to Mrs. Gutbir did not fall below the standard of care
    in monitoring the foetal heart rate.  Alternatively, the appellant submits that
    any negligence on its part was found by the jury to be a lost chance to
    prevent permanent brain injury as opposed to a finding on the balance of probabilities
    that the appellant caused or materially contributed to Zmoras injuries.  The
    appellant submits there was no evidence that any negligence on its part caused
    or materially contributed to Zmoras injuries.

BACKGROUND MEDICAL EVIDENCE

[7]

By way of background, the purpose of monitoring the foetal heart rate
    is to determine the well-being of the foetus during labour.  A foetus can have
    accelerations of the heartbeat or decelerations, which are a slowing of the
    foetal heart rate during labour.

[8]

There are three types of decelerations:


(1)

Early decelerations are normal decelerations caused by pressure on the
      foetal head that occur during each contraction, after which the foetal heart
      rate quickly returns to normal;

(2)

Variable decelerations are abrupt decelerations that are usually caused
      by compression of the umbilical cord during a contraction, after which the
      foetal heart rate abruptly returns to normal;

(3)

Late decelerations are serious decelerations caused by a lack of oxygen
      reaching the foetal heart.  During a late deceleration, the foetal heart rate
      reaches its lowest point after the peak of the contraction and does not return
      to normal until more than thirty seconds after the conclusion of the
      contraction.  Late decelerations indicate that the foetus may be suffering from
      a critical lack of oxygen that can cause injury to, or sometimes death of, the
      foetus.


[9]

There are two methods of monitoring the foetal heart rate.  One is
    electronic foetal monitoring (EFM) in which an instrument is strapped to the
    mothers abdomen and measures the babys heart rate and the mothers
    contractions on a continuous basis.  The other method of monitoring the foetal
    heart rate is manual intermittent auscultation (IA).  In IA, a nurse palpates
    the uterus to determine when a contraction begins and listens to the foetal
    heart rate with an instrument for a period of one minute, beginning as soon as
    the contraction ends.  The nurse counts the number of heart beats and then
    calculates the foetal heart rate per minute.  In general, both methods met the
    standard of care at the relevant time in question.

The GUTBIRS EVIDENCE AT TRIAL

[10]

Mrs.
    Gutbirs evidence was that, after she was admitted to the hospital, an
    attending nurse came into her room every 30 to 40 minutes to listen to the foetal
    heart rate with a wooden stick for 10 to 15 seconds (
i.e
., IA).

[11]

Around
    1:00 p.m., Mrs. Gutbirs attending physician, Dr. Nicholson, ruptured her
    membranes with a metal instrument (
i.e
., artificial rupture of
    membranes (ARM)).  Upon rupture, a thick greenish fluid called meconium was
    present in the amniotic fluid.  This can be an indication of foetal distress or
    can be of no consequence.  The nurse continued to come into the room every 30
    to 40 minutes to listen to the foetal heart rate for 10 to 15 seconds with the
    wooden stick.  An electronic foetal heart monitor was never used and Dr.
    Nicholson did not return for the three hours that followed.

[12]

Approximately
    three hours after the ARM, the nurse and Dr. Nicholson returned to the room and
    told Mrs. Gutbir to push as the babys position was high in her uterus.  Neither
    indicated that the foetus had any heart rate irregularities.  Mrs. Gutbir was
    moved into another room without explanation.  The anaesthetist was called and,
    after topping up her epidural medication, he left.  Dr. Nicholson used forceps
    to deliver the baby.

[13]

After
    baby Zmora was born, a sense of panic set into the room.  The anaesthetist was
    immediately called.  The baby was intubated and given oxygen.  She was
    transferred to the Hospital for Sick Children several hours later.

[14]

After
    Zmoras birth on January 10, 1984, the Gutbir family returned to Israel.  They
    did not notify the appellant or Dr. Nicholson of any potential claim until 2001.
[1]
By that time, Toronto General had destroyed all records relating to the event.

[15]

The
    records from the Hospital for Sick Children are available.  The notes made by
    the attending doctors at that hospital state no continual monitoring, not
    monitored during labour and no record of monitoring during labour.  In
    addition, the transfer form that accompanied Zmora from Toronto General has
    nothing written in the box concerning Abnormalities of Labour or Signs of
    Foetal Distress.

[16]

Zmoras
    parents could not identify the attending nurse. Her identity remains unknown to
    this date.

[17]

Dr. Nicholson had no record or recollection of the event.  He
    could not say whether Zmora and her mother were his patients.  The claim and
    cross-claim against him were resolved before trial.

ISSUES

(1)

Was there a breach of
    the standard of care?

(a)

The preliminary
    issue: What did the jury find was a breach of the standard of care?

[18]

The
    appellant submits that the jury found one breach of the standard of care: IA
    was not done properly.  The respondent submits that the jury found two breaches
    of the standard of care: (1) IA was not done properly; and (2) EFM should have
    been used.

[19]

The
    questions put to the jury and their answers on the standard of care are as
    follows:

Question 1-A:  Have
    the plaintiffs satisfied you on a balance of probabilities that there was a
    breach of the standard of care on the part of the hospital/attending nurse who provided
    care to Atal[yah] and Zmora Gutbir?

Answer:  Yes.

Question 1-B:  If
    yes, please state the particulars of negligence and provide clear and specific answers.

Answer:  The
    standard of care in 1984 indicates that continuous electronic foetal monitoring
    should be strongly considered with high-risk cases to determine the well-being
    of the foetus. The risk factors include on arrival maternal age, 35 plus, and
    post-term gestation; after arrival, meconium stained liquid, artificial rupture
    of membranes and epidural. Therefore, continuous electronic foetal monitoring should
    have been used.

Evidence was
    provided that nurses interpret a guideline of strongly recommend as [sic] what
    they should do.

Witnesses
    indicated that intermittent auscultation, (I.A.), could also be used if done
    properly. Failure to detect foetal heart rate irregularity through I.A. is indicative
    that I.A. was not done properly, which would also constitute a breach of the
    standard of care.

Question 2-A:  If
    your answer to question 1-A is yes, did the hospital's (attending nurse's), breach
    of the standard of care cause or materially contribute to the injuries of Zmora
    Gutbir?

Answer:  Yes.

Question 2-B:  If
    your answer to question 2-A is yes, how did the hospital's (attending nurse's),
    breach of the standard of care cause or materially contribute to Zmora Gutbir's
    injuries? Please provide clear and specific answers.

Answer:  On the
    balance of probabilities Zmora's brain injury was caused by prolonged partial hypoxic
    insult. This would have taken place one to three hours before birth. The
    reasons for this conclusion include pattern of brain injury shown on Zmora's
    MRI consistent with hypoxic ischemia. (all witnesses indicated the pattern
    possible with H.I.)

Related kidney
    problems, brain edema, timing consistent with hypoxic ischemia in period prior
    to birth. Presence of lactic acid indicates that not all energy sources had
    been depleted. Diagnosis of professionals who examined and treated Zmora was
    prolonged partial hypoxic ischemia. The conclusion of prolonged partial hypoxic
    ischemia suggests that there was a window of opportunity to intervene earlier.
    There is a period of one to two hours of partial asphyxia which does not result
    in permanent brain injury. If the standard of care was not breached, the foetal
    heartbeat abnormalities would have been detected. This would have allowed an
    earlier intervention, (birth of the baby), which could have prevented permanent
    brain injury.

The alternate
    theory that hypoglycemia caused the brain injury is not accepted on the balance
    of probabilities because no recording of growth discordance by any doctor who
    saw Zmora. None of the treating doctors identified hypoglycemia as a cause of
    the injury. Treatment for low blood sugar was quite limited and the situation
    corrected quite quickly. Hypoglycemia by itself rarely causes brain damage, but
    in combination with hypoxic ischemia, can cause injury.

Therefore, even
    in hypoglycemia situations, hypoxic ischemia is a contributing factor.

[20]

We
    agree with the respondent that the jury found that the standard of care had
    been breached in two respects: failure to perform EFM and failure to perform IA
    properly.  The jurys finding that there were two breaches of the standard of
    care is supported by the concluding sentence of the jurys answer to question
    1-B in which it stated, Failure to detect foetal heart rate irregularity
    through I.A. is indicative that I.A. was not done properly, which would also
    constitute a breach of the standard of care (emphasis added).  The word also
    indicates that the jury had already found a breach of the standard of care in
    relation to EFM.

(b)

Was there
    evidence as to the standard of care for EFM and whether it had been breached?

[21]

There
    is no issue that the attending nurse has the responsibility for monitoring the
    foetal heart rate.  The standard of care issue is based on how that monitoring
    should have been done.  Two experts, Dr. Carson and Nurse Rosen, gave evidence
    in this respect.

[22]

Dr.
    Carson is the head of obstetrics at a hospital in Regina, and the director of
    maternal foetal medicine at the University of Saskatchewan.  He was qualified
    to give expert evidence concerning foetal heart rate monitoring.  Dr. Carson
    testified that both EFM and IA were acceptable methods in 1984 and met the
    standard of care.  However, EFM should have been used in this case as several
    high-risk factors were present.  Had EFM been used, irregularities in Zmoras
    heart rate would have been detected, indicating to the nurse and Dr. Nicholson
    that immediate intervention was required.

[23]

In
    addition to the evidence of Dr. Carson, the finding that the standard of care
    required EFM is supported by the evidence of Nurse Rosen.  Nurse Rosen was
    qualified as an expert in obstetrical nursing entitled to provide an opinion on
    the standard of care.  She was an instructor at the Victoria Hospital in
    obstetrics and gynecology and rose to become the senior director nursing, division
    of nursing, Victoria Hospital.  Nurse Rosen testified that EFM was required
    because of the presence of the following risk factors:  this was a post-term
    pregnancy; Mrs. Gutbir was older, at 35 years of age; Mrs. Gutbir had an
    epidural; and Mrs. Gutbir had membranes that were stained with meconium.  When
    these risk factors were present, a nurse had no discretion to deviate from the
    applicable guidelines, which mandated the use of EFM.  Meconium can be an
    indication that the baby is stressed, so a nurse must take further precautions
    and pay close attention to the babys heart rate.  The attending nurses
    failure to use EFM when it was clearly indicated in these circumstances was a
    breach of the standard of care.

[24]

As
    there was evidence as to the standard of care for EFM and evidence to support
    the jurys verdict that the standard of care for EFM had been breached, the jurys
    verdict in this regard is not plainly unreasonable.

(c)

Was there
    evidence as to the standard of care for IA and whether it had been breached?

[25]

The
    trial judge ruled that Dr. Carson could not give evidence as to the standard of
    care of a nurse in 1984.  He was, however, qualified as an expert on the issue
    of foetal heart rate monitoring.  While he did not describe how IA was to be
    done in terms of specific technique, he did talk about the timing of when it
    was to be done.

[26]

Nurse
    Rosen opined that the attending nurse in this case also fell below the standard
    of care in failing to properly auscultate the foetal heart rate.  After an objection
    by defence counsel that she was giving an opinion outside her report, the jury
    was excused and the trial judge eventually ruled that Nurse Rosen could not
    offer an opinion as to what the standard of care was for IA.  When the jury
    returned, the trial carried on.  No request was made for a direction to the
    jury not to consider the initial statement by Nurse Rosen and no direction was
    given to this effect.

[27]

When
    the trial judge summarized the evidence of Nurse Rosen, she stated that Nurse
    Rosens opinion was that the attending nurse had failed to auscultate the
    babys heart rate appropriately.  There was no objection to the trial judges
    charge to the jury.

[28]

The
    appellant submits that objection should have been taken and that the two
    rulings made it clear neither Dr. Carson nor Nurse Rosen could give evidence as
    to the standard of care for IA.  Thus there was no evidence as to the standard
    of care for IA.

[29]

There
    are two answers to this submission.  First, having regard to the jurys finding
    that the failure to use EFM was a breach of the standard of care, the finding
    that the standard of care respecting IA was also breached is irrelevant.

[30]

Second,
    contrary to the appellants submission, it was open to the jury to conclude on
    the evidence that the nurse failed to conduct IA properly based on the
    infrequency in which she assessed Zmoras heart rate.

[31]

Dr.
    Carson was qualified to, and did, give evidence as to the frequency with which
    IA should be performed.  The objection sustained by the trial judge was to Dr.
    Carson giving evidence as to the standard of care of a nurse.  Thus, quite
    apart from Nurse Rosens evidence, there was evidence from which the jury was
    entitled to infer that the attending nurse fell below the standard of care in
    the manner she administered IA.

[32]

Dr.
    Carson testified that, when conducting IA properly, foetal heart rate
    monitoring should be done every 15 to 30 minutes during the first stage of
    labour and every five minutes in the second stage of labour.   Both Atalyah and
    Avraham Gutbirs evidence was that, during the second stage of labour, the
    nurse did not conduct measurements any more frequently than every 30 minutes as
    she had done during the first stage.  There is support for this evidence in the
    notes made by the attending doctors at the Hospital for Sick Children which
    state no continual monitoring, not monitored during labour and no record
    of monitoring during labour.

[33]

The
    appellant submits that because the jury made no mention of timing respecting
    when IA had to be done, the jury rejected Dr. Carsons evidence on timing.

[34]

We
    disagree.  In his evidence, Dr. Carson referred to the frequency with which IA
    needed to be done.  He equated the word properly with timing.  In adopting
    the word properly, implicitly, so did the jury.

[35]

The
    jurys findings are not plainly unreasonable.  The appellants arguments
    respecting the standard of care are dismissed.

(2)

Was there evidence of
    causation?

[36]

The
    appellant submits that there is no evidence the attending nurse did not detect
    signs of foetal distress and alert Dr. Nicholson.  The appellant further
    submits that the jurys verdict ignores the fact that the nurse was not charged
    with determining the time and method of delivery; Dr. Nicholson was.  The
    appellant submits that the nurse could have performed IA properly, heard the
    decelerations and taken all appropriate measures, only to have the doctor fail
    to deliver the baby in time to prevent injury.  Instead the jury reasoned
    improperly from the result that the attending nurses actions must have been negligent.

[37]

The
    appellants submissions ignore Dr. Carsons testimony that, if EFM had been
    used or IA had been done properly, the attending nurse would have detected
    signs of foetal distress.  From this evidence, the jury was entitled to infer that
    the attending nurse breached the standard of care.

[38]

Contrary
    to the appellants arguments, there is evidence the attending nurse did not
    detect signs of foetal distress.  Perhaps the strongest piece of evidence in this
    regard is that the transfer form that accompanied Zmora from Toronto General had
    nothing written in the box concerning Abnormalities of Labour or Signs of
    Foetal Distress.

[39]

There
    is further evidence from which the jury could infer that neither the attending
    nurse nor Dr. Nicholson was aware of the distress of the foetus.  Dr. 
    Nicholson did not express any concern with respect to foetal distress prior to
    delivery.  He did not have the anaesthetist stay in the delivery room as Dr.
    Carson testified one might expect if there was a risk of having to resuscitate
    Zmora.  Moreover, the Gutbirs testified that everyone panicked only after
    Zmora was born.

[40]

Whether
    one applies the but for test or the material contribution test, the
    appellant acknowledges that a tortfeasor cannot excuse itself from liability
    simply by pointing out that, in addition to the tortfeaser, another person
    caused or materially contributed to the plaintiffs injuries.  The appellant
    argues, however, that there was no evidence that the nurses breach of the
    standard of care caused or materially contributed to Zmoras brain injury.

[41]

Again,
    we disagree.

[42]

We
    begin by noting that, on appeal, the appellant does not take issue with the
    jurys finding that, on a balance of probabilities, Zmoras permanent brain
    injury was caused by prolonged partial hypoxic insult or deprivation of
    oxygen.

[43]

While
    there was no direct evidence of causation, there is evidence from which the jury
    could properly infer a causal connection.  Dr. Carson testified that, if EFM had
    been used or IA had been done properly, the distress of the foetus would have been
    detected, detection would have prompted intervention, and intervention would
    likely have been beneficial in this case.  The jurys answer tracks Dr.
    Carsons evidence which indicates that they accepted it.  The evidence of Dr.
    Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic
    ischemic insult before injury results.  The extent of the injury increases as
    time goes on.  The evidence of Dr. Carson and Dr. Hill establishes that, had
    the standard of care with respect to foetal monitoring not been breached, the
    distress of the foetus would have been detected and, once detected, there was
    sufficient time to deliver Zmora before injury to her brain resulted.

[44]

Further,
    given the evidence that the attending nurse fell below the standard of care
    with respect to foetal heart rate monitoring, and the jurys rejection of the
    alternate theory that hypoglycaemia was a major contributor to Zmoras brain
    damage (which is not contested on appeal), the nurses breach is the only reasonable
    explanation for the cause of Zmoras brain injury.

[45]

The
    appellant further submits that the jury only found that any negligence on its
    part was found by the jury to be a lost chance to prevent permanent brain
    injury as opposed to a finding on the balance of probabilities that the
    appellant caused or materially contributed to Zmoras injuries.  The
    appellants submission is based on the following sentence in the jurys answer
    to question 2-b (
i.e.
, how the attending nurses breach of the
    standard care caused or materially contributed to the injuries of Zmora): [Detection
    of foetal heartbeat abnormalities] would have allowed an earlier intervention,
    (birth of the baby), which could have prevented permanent brain injury.  While
    this sentence taken in isolation can be read in the manner submitted by the
    appellant, when the jurys answers to the questions are read as a whole and in
    conjunction with Dr. Carsons evidence, we are satisfied the jurys finding was
    based on a balance of probabilities.

[46]

Indeed,
    the jurys answer to the question on causation begins with, On the balance of
    probabilities, Zmoras brain injury was caused by prolonged partial hypoxic
    insult.  This would have taken place one to three hours before birth.  The
    wording of the sentence relied on by the appellant reflects the jurys
    understanding that the longer the negligent situation prevailed, the more
    likely it was that serious permanent brain injury would result.

[47]

Finally,
    we reject the appellants submission that in order for causation to be
    established evidence as to exactly when irregular foetal heart beat began was
    required.   Having regard to the evidence and the jurys answers to the two
    questions, if, as required by the standard of care, EFM had been used, or IA
    done after a contraction for the required length of time and with the required
    frequency, it is likely that the irregularities in the foetal heartbeat would
    have been noticed at a stage when permanent brain injury could have been
    prevented.  In other words, the injuries were preventable on a balance of
    probabilities.

[48]

Accordingly,
    the appeal is dismissed.

[49]

The
    parties have agreed that in the event the respondents were successful, costs in
    the amount of $50,000 inclusive of disbursements and all applicable taxes
    should be awarded.  So ordered.

Released: Feb. 2, 2012                                          K.M.
    Weiler J.A.

KMW                                                                I
    agree Armstrong J.A.

I
    agree Alexandra Hoy J.A.





[1]
Section
    47 of the then
Limitations Act
, R.S.O. 1980, c. 240

provided that
    where a person entitled to bring an action is, at the time the cause of action
    accrues a minor, the period within which the action may be brought shall be
    reckoned from the date when such person became of full age.


