



COURT OF APPEAL FOR ONTARIO

CITATION: Achneepineskum v. Laine, 2014 ONCA 644

DATE: 20140919

DOCKET: C56807

Gillese, van Rensburg and Hourigan JJ.A.

BETWEEN

Taylor
    Achneepineskum and Jasmine

Achneepineskum,
    by their Litigation Guardian,

Samuel Achneepineskum,
    Martha Achneepineskum,

Olivia Achneepineskum,
    Daryl Achneepineskum,

Samuel Achneepineskum
    Jr., and the said

Samuel Achneepineskum,
    personally

Plaintiffs (Appellants)

and

Roy Laine
, Geraldton District Hospital,

Astra
    Zeneca Canada Inc.,

and Merck Frosst Canada
    Ltd.

Defendants (
Respondent
)

Alan A. Farrer, Richard C. Halpern and Kate L. Cahill,
    for the appellants

Darryl A. Cruz, Chris Hubbard and Sara Kushner, for the
    respondent

Heard: May 7, 2014

On appeal from the judgment of Justice J.F. McCartney of
    the Superior Court, dated February 27, 2013.

van Rensburg J.A.:

OVERVIEW

[1]

The appellants appeal the dismissal of their claim for damages against
    the respondent Dr. Roy Laine, as a result of alleged negligence in the prenatal
    care of his patient Martha Achneepineskum prior to the birth of her daughter
    Taylor Achneepineskum.
[1]


[2]

Taylor was born on April 7, 1993 at Geraldton District Hospital. She was
    subsequently diagnosed with cerebral palsy. The consensus of the expert evidence
    at trial was that Taylor suffered a hypoxic-ischemic event that occurred immediately
    prior to or during her birth, when her brain and heart tissue were damaged due
    to a lack of oxygen in her blood supply. The hypoxia caused Taylor to release
    meconium, or fecal matter, which she aspirated from the surrounding amniotic
    fluid. The aspirated meconium resulted in continued levels of high blood
    pressure within Taylors lungs, which further impeded the supply of oxygen to her
    brain, damaging Taylors brain tissue. Taylor was not breathing when she was
    born, and she was resuscitated by Dr. Laine.

[3]

It was acknowledged that the respondent was not negligent in his
    delivery of Taylor or her post-delivery care. The two principal issues at trial
    were whether he failed to meet the standard of care in his prenatal care of
    Martha, in particular in addressing her elevated blood pressure in the third
    trimester of pregnancy, and whether any breach in the standard of care caused
    the hypoxic-ischemic event that resulted in Taylors condition of cerebral
    palsy. The parties had agreed to the quantum of damages in the event that the
    respondent was found liable for Taylors condition.

[4]

At trial, the principal theory of the appellants with respect to the
    respondents liability was that Marthas ingestion of the blood pressure
    medication enalapril (with the trade name Vasotec) had caused Taylor to
    become hypotensive, leading to a reduction of oxygen to her vital organs, and
    that Dr. Laine had breached the standard of care in prescribing a drug that was
    contraindicated in pregnancy because of its known risks to the fetus.

[5]

Briefly, the trial judge concluded that there was no breach of the
    standard of care for a physician in the early 1990s to have prescribed a low
    dose of Vasotec, and that in any event, the very low amount Martha had consumed
    (the only evidence being that she had taken only four sample pills and had not
    filled the prescription), would not have caused Taylor to become hypoxic.

[6]

The Vasotec theory was not pursued on appeal to this court. Instead,
    the appellants contend that the trial judge erred in rejecting their
    alternative theories of causation and liability  that Martha suffered from
    pre-eclampsia, or at least elevated blood pressure during the third trimester
    of pregnancy, that caused Taylor to be unable to withstand the rigours of
    birth, and that Dr. Laine was negligent in failing to induce or to refer Martha
    to an obstetrician.

FACTS

[7]

At trial, the clinical history in relation to Marthas pregnancy with
    Taylor and Taylors birth was introduced by way of an agreed statement of
    facts. There were 12 witnesses, including Martha and Dr. Laine, and expert
    witnesses testified on the issues of standard of care and causation. Only the
    facts that are relevant to this appeal are set out here.

[8]

When Martha became pregnant with Taylor, she was living in Ogoki Post, a
    fly-in-only First Nations community of 300 residents in Northern Ontario,
    located 435 km from Thunder Bay and 227 km from Geraldton.

[9]

The respondent had practised family medicine in Geraldton since 1979,
    and since 1980 had provided a broad range of medical services, including
    obstetrics, to Ogoki Post.

[10]

Martha
    had been Dr. Laines patient since around 1985, and he provided prenatal care
    from September 22, 1992, approximately three months into the pregnancy, until
    Taylors delivery on April 7, 1993 at full term.

[11]

Prior
    to her pregnancy with Taylor, Martha had a history of elevated blood pressure. She
    was prescribed anti-hypertensive medications over the years. All of the expert
    witnesses agreed that the blood pressure medication that Martha was taking
    before delivery of Taylor, the beta-blocker Atenolol, played no role in the
    hypoxia at or prior to Taylors birth.

[12]

Dr.
    Laine was aware of Marthas history of hypertension, and noted this in her
    first prenatal visit on September 22, 1992, when he also ordered blood work, a
    urinalysis and an ultrasound. At that time he also refilled her prescription
    for Atenolol.

[13]

Martha
    had approximately 14 medical attendances for her pregnancy with Taylor, which
    occurred in Dr. Laines office in Geraldton, at the Geraldton District Hospital
    and at the clinic in Ogoki Post.

[14]

Although
    one of the expert witnesses, Dr. Rachlis, initially expressed concern about
    Taylors size (which would have led him to classify the pregnancy as high-risk
    and requiring consultation with an obstetrician), he ultimately agreed with the
    other experts that fetal growth was normal and within the 25
th
percentile. This was confirmed by four ultrasounds indicating normal fetal
    growth.

[15]

Although
    Dr. Laine recorded an incorrect date each time he noted Marthas due date in
    her records, Taylor was born at term, during the period predicted by an
    ultrasound six months before her birth. From the last ultrasound on April 1,
    1993, five days before Taylors delivery, Martha presented normal measurements
    of the fetus, the fundal placenta, and the amount of amniotic fluid.

[16]

The
    expert witnesses agreed that there was nothing in any of the tests prior to
    Taylors birth to indicate any problem with the pregnancy or concern about the
    fetus. The only exception was an elevation in Marthas blood pressure during
    the third trimester. All of the experts agreed that, until that point, Marthas
    hypertension was well-controlled.

[17]

Marthas
    blood pressure was in the normal range until she attended at the Geraldton District
    Hospital on February 19 complaining of swollen hemorrhoids. Her blood pressure
    was measured at 150/90, and Dr. Laine ordered tests, including a urinalysis and
    ultrasound.

[18]

There
    is no notation of blood pressure on Marthas next visit on March 9 at the Ogoki
    Post clinic.

[19]

On
    March 26, Marthas blood pressure was recorded at 150/90 and Dr. Laine ordered
    a non-stress test, which was conducted at Geraldton District Hospital on March
    29.

[20]

Two
    days later, and one week before Taylors birth, Marthas blood pressure was
    measured at 160/90 during her visit to Dr. Laines Geraldton office. On that
    occasion, in addition to ordering another non-stress test, ultrasound and
    urinalysis, Dr. Laine prescribed a low dose (5 mg rather than the normal
    recommended dose of 40 mg) of Vasotec and gave her a sample pack of about four
    pills. Martha took the sample pills, but did not have the prescription filled.

[21]

On
    April 1, 1993, when Martha attended for a non-stress test and ultrasound, her
    blood pressure was recorded as 130/80. At her next visit with Dr. Laine, on
    April 5, 1993, Marthas blood pressure was recorded as 130/80. On her admission
    to Geraldton District Hospital the following day, Martha was in labour and her
    blood pressure was 160/100.

[22]

When
    presented with Marthas elevated blood pressure, Dr. Laine was aware of the
    risk that she might be developing pre-eclampsia. Pre-eclampsia is a condition,
    as described by the trial judge, which can sicken the mother and reduce oxygen
    going from the mothers blood to the placenta, and then on to the fetus. The
    signs of pre-eclampsia are a sudden increase in blood pressure and protein in
    the urine and/or edema (generalized swelling).

[23]

Two
    urinalyses before February 19, 1993 showed no protein in Marthas urine.
    However the results of urinalyses that, according to the clinical records, had
    been ordered on February 19 and March 31, were missing from the records.

[24]

On
    April 6, 1993, Martha went into spontaneous labour. Contractions began at 1:00
    p.m. and she was admitted to Geraldton District Hospital at 10:30 p.m.

[25]

During
    labour and delivery, Taylors fetal heart rate was monitored electronically.
    From 11:00 p.m. to 11:30 p.m., the heart rate hovered at 117 to 125 beats per
    minute, which was normal. As midnight approached, the nurses noted two
    decelerations of Taylors fetal heart rate, but these decelerations were
    resolved when Martha turned onto her left side.

[26]

Taylor
    was born at 12:12 a.m. on April 7, 1993. Dr. Laine described Taylors condition
    as moribund and severely depressed. She had no heartbeat, she was not
    breathing, and she was covered in meconium from her surrounding amniotic fluid.

[27]

Dr.
    Laine began emergency neonatal resuscitation procedures on Taylor. He
    administered oxygen and fluids and performed cardiac massage. Taylors
    condition worsened by 12:55 a.m. but slowly began to improve at 1:15 a.m. By
    the time Dr. Laine accompanied Taylor in an air ambulance for transfer to the
    Port Arthur General Hospital in Thunder Bay, she was stable. Taylor was
    subsequently diagnosed with cerebral palsy.

TRIAL DECISION

[28]

The
    trial judge dismissed the appellants action. He concluded that they had failed
    to prove on a balance of probabilities that Dr. Laines prenatal care of Martha
    and Taylor fell below the standard of care and that Dr. Laines actions or
    omissions caused Taylors injuries.

[29]

The
    court heard evidence from a number of expert witnesses. On the issue of the
    standard of care of a family doctor in prenatal care and delivery, and whether
    Dr. Laine had breached the applicable standard, there were three experts: Dr.
    Gregory Davies and Dr. Val Rachlis, who were called by the appellants, and Dr.
    Lawrence Oppenheimer, who was called by the respondent.

[30]

Dr.
    Laine also testified at trial respecting his care of Martha and Taylors
    delivery.

[31]

Dr.
    Derek Armstrong, a pediatric neuro-radiologist, was called by the appellants.
    He provided an opinion that the first injury was a hypoxic-ischemic event
    caused by a drop in blood pressure associated with heart stoppage that occurred
    around the time of birth, and that the second injury was multiple brain
    hemorrhaging resulting in cerebral palsy. This opinion was unchallenged.

[32]

The
    following expert witnesses gave evidence on the issue of causation,
    specifically, what led to the hypoxic-ischemic event: Dr. Davies, Dr. Jacques
    Belik and Dr. Michael Rieder, who were called as witnesses by the appellants,
    and Dr. Gideon Koren and Dr. Michael Marrin, who were called by the respondent.

[33]

The
    trial judge found that, although Dr. Laine made certain record-keeping errors, he
    did not breach the applicable standard of care in his prenatal care of Martha, in
    his response to her condition of hypertension and her elevated blood pressure
    in the third trimester.

[34]

The
    trial judge concluded that the failure to make an accurate notation on each
    occasion of Marthas due date fell below the standard of care. Nevertheless,
    Taylor was not post-term but born on the date indicated by the first
    ultrasound.

[35]

There
    was nothing in Taylors fetal growth to require a referral to an obstetrician.
    Ultimately, all of the experts agreed that Taylors growth was normal, as
    demonstrated by the ultrasounds. The weight of the evidence (the opinion of all
    experts except Dr. Davies) was that this was a Grade B pregnancy
[2]
,
    meaning it was not high risk but possible problems had to be watched out for:
    at para. 30.

[36]

The
    trial judge concluded that the respondent did not breach the standard of care
    in failing to induce labour in the final few days of the pregnancy. He accepted
    the opinion of Dr. Oppenheimer that this was a matter of clinical judgment,
    properly exercised by Dr. Laine. The appellants expert Dr. Rachlis, who initially
    expressed the opinion that Martha should have been induced, was not aware that
    inductions were not permitted at the Geraldton District Hospital. He eventually
    agreed that, unless there was evidence of protein in the urine, the situation
    did not call for induction.

[37]

The
    trial judge concluded that there was no breach in the standard of care in Dr.
    Laines response to Marthas hypertension. Marthas blood pressure was
    well-controlled until February 19, 1993. The trial judge accepted that,
    although there was no notation, Dr. Laine would have taken Marthas blood
    pressure on March 9, and that her blood pressure was measured on every visit.
    None of the readings were considered severe by the experts, and none were
    ignored by Dr. Laine. He ordered appropriate tests to monitor the growth of the
    fetus and to rule out pre-eclampsia.

[38]

The
    trial judge accepted that, although the results of two urinalyses were missing
    from the clinical records, this does not mean that the tests were not done and
    reviewed by Dr. Laine. He rejected the opinion of Dr. Davies that a 24-hour
    urine test would have been more accurate for protein in the urine and should
    have been carried out, accepting the opinion of Dr. Oppenheimer and Dr.
    Rachlis, that the dip-stick tests ordered by Dr. Laine met the standard of
    care. The trial judge accepted Dr. Oppenheimers opinion that it was highly
    unlikely that there was any abnormal protein in Marthas urine during the
    pregnancy.

[39]

The
    trial judge concluded that Dr. Laines prescription of the ACE inhibitor Vasotec
    did not breach the standard of care. Although the manufacturer had sent a letter
    to physicians, including the respondent, warning against enalapril during
    pregnancy, the drug was still being prescribed by doctors to their pregnant
    patients in 1993. The 1992 version of the leading text on obstetrics suggested
    that one should balance the risks against potential benefits of ACE inhibitors
    during pregnancy. The 1993 version of the same text stated that ACE inhibitors
    were contraindicated during pregnancy. Dr. Laines decision to prescribe
    Vasotec would have been taken after weighing the possible risks with the
    benefits.

[40]

On
    the issue of causation, the trial judge found that Taylors injuries were not
    caused by enalapril or Marthas elevated blood pressure or pre-eclampsia.

[41]

The
    trial judge rejected the opinions of the appellants expert witnesses, Dr.
    Belik and Dr. Davies, that the cause of Taylors injury was hypotension caused
    by Vasotec before birth. He also rejected the conclusion of Dr. Rieder that
    Vasotec prevented Taylor from responding to the stresses of labour.

[42]

The
    trial judge preferred the opinions of Dr. Koren and Dr. Marrin that Vasotec was
    not involved. This was because there was no fetopathy  Taylor did not show the
    expected effects of enalapril, such as a decrease in urine, or any other
    evidence that her kidneys were impaired. In addition, the amount of Vasotec
    consumed by Martha was very small, and even if the prescription for one week at
    5 mg had been filled, very little of the drug would have crossed the placenta
    to the baby. As such, the amount of Vasotec taken by Martha would not have been
    enough to have affected Taylor.

[43]

The
    trial judge also rejected the appellants argument, based on the testimony of
    Dr. Marrin in cross-examination, that, although it was a dramatic intrauterine
    event at the time of birth that caused the hypoxic-ischemic situation, Marthas
    pre-eclampsia or elevated blood pressure resulted in less oxygen getting to the
    placenta, which made Taylor more vulnerable to the stresses of delivery. The
    trial judge noted that this was a difficult argument to make, as the
    plaintiffs evidence on causation was all directed at enalapril.

[44]

The
    trial judge noted that on the evidence it was unlikely Martha had a protein
    problem, and pre-eclampsia did not appear to have occurred. The appellants
    expert Dr. Belik testified that any placental insufficiency was not enough to
    hinder Taylors fetal growth. Dr. Belik excluded Marthas high blood pressure
    as a significant factor affecting the fetus. Dr. Davies indicated that Marthas
    hypertension without the addition of enalapril would have been unlikely to
    cause such a bad outcome.

[45]

The
    trial judge characterized Marthas condition as very mild hypertension, based
    on her blood pressure readings which only went over 150/90 on March 31 and
    dropped after enalapril was given. If there had been a hypoxic situation, it
    should have shown up on the fetal heart strip. The trial judge noted that the
    four ultrasounds and heart monitors were reassuring, showing no cause for
    concern.

[46]

The
    trial judge observed: For the most part, all witnesses agreed that at some
    time during the few minutes between the end of the fetal heart monitor strip
    and Taylors birth an event occurred which led to her injury. We are not sure
    what that event was. He then referred to a passage from Dr. Marrins
    re-examination and stated: So it seems that Dr. Marrin is identifying the
    likely but for cause of Taylors injuries to be interruption of oxygen due to
    cord compression or difficult uterine contractions at birth: at para. 99. The
    trial judge concluded that the appellants had failed to prove that Marthas
    hypertension or pre-eclampsia was the cause of Taylors injuries.

[47]

Finally,
    the trial judge concluded that there was no obligation for Dr. Laine to have
    informed Martha of the pregnancy risks associated with Vasotec or to have offered
    the alternative of induction. He noted that, in any event, it was unlikely that
    she would not have followed his recommendations.

STANDARD OF REVIEW AND ISSUES ON APPEAL

[48]

The
    issues raised on appeal seek to challenge the trial judges findings of fact
    regarding standard of care and causation. As such, to succeed in the appeal,
    the appellants must demonstrate a palpable error, leading to a wrong result.
    Deference is accorded to a trial judges findings of fact, including inferences
    of fact, unless a palpable and overriding error is established:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 25.

[49]

The
    appellants contend that there were such errors in this case. They assert that
    the trial judge, after rejecting the Vasotec theory, gave insufficient
    credence to their alternative theory that Dr. Laine had failed to properly
    respond to Marthas high blood pressure by inducing her or by referring her to
    an obstetrician.

[50]

The
    appeal raises the following specific issues:

1)

Did
    the trial judge err in failing to find that Martha had pre-eclampsia? In
    particular, did the trial judge err in giving the benefit of the doubt to Dr.
    Laine with respect to the missing urinalysis results, and in permitting Dr.
    Oppenheimer to testify about proteinuria and in accepting his opinion that
    Martha did not have protein in her urine?

2)

Did
    the trial judge err in concluding that the respondent was not negligent in his
    management of Marthas blood pressure, in particular in finding that he met the
    standard of care when he failed to refer Martha to an obstetrician or to induce
    her when she was at term? On this issue, did the trial judge fail to give
    appropriate weight to what the appellants contend were Dr. Laines own
    admissions to having breached the standard of care?

3)

Did
    the trial judge err in dismissing the appellants causation theory once the Vasotec
    theory was undermined? In this regard, did the trial judge seize on conjecture
    with respect to the role of cord compression and difficult uterine
    contractions, ignoring that a healthy fetus would have tolerated these
    stresses?

4)

Did
    the trial judge err in concluding that the appellants had failed to establish
    an informed consent claim?

ANALYSIS

Issue One 
    Challenge to the Finding re: Pre-eclampsia

[51]

The
    appellants submit that the trial judge erred in his conclusions respecting pre-eclampsia
    during the third trimester of Marthas pregnancy. This, in turn, is related to
    other arguments on appeal  that Martha, if pre-eclamptic, ought to have been
    referred to an obstetrician or induced, and that pre-eclampsia itself was a
    cause of the hypoxia leading to Taylors condition after birth.

[52]

The
    appellants do not challenge the trial judges conclusion that Dr. Laines
    method for assessing protein in urine (dip-stick rather than 24-hour
    urinalysis) was adequate, and his rejection of Dr. Davies opinion to the
    contrary. Instead, they point to the missing urinalysis results at the time that
    Marthas blood pressure was significantly elevated, together with Dr. Laines
    own admissions that in the absence of certain information he should have
    presumed pre-eclampsia. They assert that the trial judge erred in giving the
    benefit of the doubt to Dr. Laine on the issue of whether there was protein in
    Marthas urine, when there were clear inadequacies in his record-keeping. The
    appellants also contend that the trial judge ought not to have accepted certain
    evidence of Dr. Oppenheimer. Specifically, they assert that the trial judge
    erred in permitting Dr. Oppenheimer to provide an opinion, based on the
    available readings, including a measurement taken after Taylors birth, that
    Martha did not have protein in her urine, although this opinion was not
    included in his report served prior to trial.

[53]

I
    will deal with each of the appellants specific arguments with respect to this
    issue in turn.

[54]

First,
    in my view, it is wrong to characterize the trial judges findings with respect
    to the missing urinalyses as giving the benefit of the doubt to Dr. Laine. If
    the results from the two significant urinalyses had been available, pre-eclampsia
    might well have been established, or ruled out. Instead, the trial judge had to
    determine what inference should be drawn from the fact that the records were
    missing, and whether, on the basis of the available evidence, including the opinions
    of the expert witnesses, it was likely that Martha had developed pre-eclampsia
    in the third trimester.

[55]

The
    trial judge accepted that Dr. Laine was aware of the risk of pre-eclampsia, and
    the need to test Marthas urine for protein. All of the evidence was consistent
    with these findings, as well as the fact that Dr. Laine had ordered urinalyses
    on the dates in question, February 19 and March 31. The trial judge observed
    that the fact that the results were missing did not mean that the tests were
    not done and reviewed by Dr. Laine. He noted, considering that he was
    operating out of three locationsand 20 years having elapsed, it is not
    unlikely that some records, available at the time, are no longer available.

[56]

The
    appellants suggest that Dr. Laines poor record-keeping (the repeated errors in
    noting Marthas correct due date and his failure to take a complete history as
    required when he first attended Martha on her pregnancy) should give rise to a
    negative inference in respect of the missing urinalyses. I disagree. In my
    view, Dr. Laines record-keeping shortcomings do not provide sufficient reason
    to conclude that he failed to obtain and review the urinalyses that were
    ordered and that were missing in the records. The evidence that Dr. Laine knew
    of the importance of the tests and was aware of the risk of pre-eclampsia,
    suggests the contrary.

[57]

It
    is important to observe that the trial judge did not infer from this evidence
    alone that the urinalyses were negative for protein in the urine; instead and
    in the absence of the urinalysis results, he had to consider all of the
    evidence as to whether it was likely that Martha had pre-eclampsia. The
    evidence consisted of the various blood pressure readings, the fact that Martha
    had not complained of ill health during the pregnancy, the lack of protein in
    the available urinalyses, Dr. Laines evidence that he did not believe that
    Martha was pre-eclamptic, and the opinions of the expert witnesses based on the
    available information.

[58]

The
    appellants assert that, on the question of whether Martha was pre-eclamptic,
    the trial judge accepted an opinion of Dr. Oppenheimer, an expert witness
    called by the respondent, that ought not to have been admitted. At para. 25 of
    his reasons, the trial judge referred to the evidence of Dr. Oppenheimer that
    with negative tests September 9, 1992, and December 10, 1992 and only a
    trace showing on a test April 13, 1993 [post-delivery], it was highly
    unlikely there was any abnormal protein in Marthas urine during the pregnancy.

[59]

The
    appellants contend that the trial judge erred in permitting Dr. Oppenheimer to
    testify about the likelihood of protein in Marthas urine during her pregnancy
    with Taylor when this topic had not been addressed in his expert report.

[60]

It
    is useful to recall how this evidence developed at trial. In his testimony in
    chief, Dr. Davies, as an expert witness called by the appellants, offered the
    opinion that the standard of care required 24-hour urine tests rather than the
    dip-stick tests ordered by Dr. Laine. Over the objection of the respondents
    counsel, Dr. Davies was permitted to offer an opinion as to the likelihood that
    a 24-hour urine test would have revealed protein in Marthas urine at the time
    that Marthas blood pressure was elevated. Later in the trial, when Dr.
    Oppenheimer was called as an expert witness by the respondent, counsel elicited
    his opinion respecting the use in 1993 of 24-hour urine tests and their
    reliability. The appellants counsel objected on the basis that Dr.
    Oppenheimers written report had not addressed the question of 24-hour urine
    tests. The trial judge permitted him to testify on this issue, in part because
    Dr. Davies had been allowed to provide his opinion. (Ultimately the trial judge
    concluded that the dip-stick testing employed by Dr. Laine met the standard of
    care, and this finding is not challenged on appeal.)

[61]

Later
    in his evidence Dr. Oppenheimer testified without objection about Marthas
    blood pressure of 180/120 in June 1989 and a urinalysis at that time that showed
    protein. Counsel then asked Dr. Oppenheimer whether any of the blood pressures
    he saw during Taylors antenatal care were of such severity that protein in the
    urine might be expected. When objection was taken, this question was withdrawn.
    Dr. Oppenheimer was then taken to the available urinalyses and asked to opine
    as to the likelihood of false negatives, again exploring the reliability of
    such testing against the 24-hour urinalysis. The appellants counsel again
    objected that this was not in his report, and, consistent with the earlier ruling,
    the trial judge permitted Dr. Oppenheimer to continue. When objection was taken
    to the inclusion in counsels question of reference to the post-delivery urine
    test (showing no protein in the urine), counsel rephrased the question to refer
    only to the pre-delivery urinalyses. Ultimately, Dr. Oppenheimer was asked, Whats
    your opinion as to whether there was any abnormal protein during this
    pregnancy? He responded, I think on the basis of those two tests, its
    extremely unlikely.

[62]

In
    my view, there was no error by the trial judge in relation to the permitted
    scope of Dr. Oppenheimers evidence respecting protein in Marthas urine. The
    principal objection was to Dr. Oppenheimer testifying about the reliability of the
    dip-stick urine tests performed by Dr. Laine as compared with a 24-hour
    urinalysis. Dr. Davies evidence suggested that a 24-hour urine test might have
    shown protein in Marthas urine. It was a proper exercise of the trial judges
    discretion, having permitted such evidence to be led by the appellants, to
    allow Dr. Oppenheimer to express his own opinion based on the available
    urinalyses, whether it was likely Martha had protein in her urine during the
    pregnancy. In essence he was testifying about the reliability of the tests that
    were administered as opposed to the 24-hour urinalysis that Dr. Davies
    contended should have been performed. The evidence of Dr. Oppenheimer with
    respect to the inferences to be drawn from the available urinalyses was not
    outside the scope of his expertise and was relevant to the trial judges task
    of assessing all available evidence on the question of whether Martha had
    pre-eclampsia.

[63]

While
    the trial judge, at para. 25 of his reasons, referred to the April 13
    (post-delivery) urinalysis test result in his summary of Dr. Oppenheimers
    conclusions on this point, this was not a palpable or overriding error. From
    Dr. Oppenheimers testimony, it was clear that he found it extremely unlikely
    that Marthas urine contained protein during the pregnancy, even without the
    April 13 reading.

[64]

While
    I find no error in the trial judges consideration of Dr. Oppenheimers
    evidence on the inference to be drawn from the available urinalysis results, I
    note that, even if such testimony were ignored, the weight of the other
    evidence at trial does not support the appellants contention that Martha had developed
    pre-eclampsia.

[65]

As
    already noted, Martha did not complain of ill health at any time during the
    pregnancy, including the third trimester. None of the expert witnesses
    characterized her elevated blood pressure as severe. As the trial judge noted,
    the diastolic blood pressure (the second number) is the most important because
    it is less subject to fluctuation. Before she was in labour, Marthas diastolic
    blood pressure never measured over 90. Her systolic pressure never rose over
    150 until March 31, when it was at 160 and was lowered after the administration
    of Vasotec. Dr. Davies testified that Martha did not develop Homolysis Elevated
    Liver Enzymes and Low Platelets (HELLP), a severe complication associated with
    pre-eclampsia, and, without any readings of protein in the urine, he could not
    affirmatively conclude that Martha had pre-eclampsia. Another of the
    appellants expert witnesses, Dr. Rachlis, testified that Marthas weight gain
    was normal, suggesting that there was no edema  another indicator of
    pre-eclampsia.

[66]

Dr.
    Laines own evidence was that pregnant patients should be tested for
    proteinuria at every visit, and that this was his normal practice. The only
    time that Dr. Laine admitted that he should have presumed that Martha had
    pre-eclampsia was when he responded to questions that were premised on the
    assumption that he had no information about Marthas blood pressure or urinary
    protein levels between February 19 and March 26, 1993. In fact, he was
    unequivocal in stating that he did not suspect that Martha was developing
    pre-eclampsia during her pregnancy.

[67]

Finally,
    on this issue, the appellants assert that the trial judge confused the symptoms
    of eclampsia with pre-eclampsia in para. 92 of his reasons when he stated:

Preeclampsia as explained by Dr. Davies does not appear to have
    occurred here. It is very serious, some of the effects being seizures, brain
    hemorrhages, myocardial events, and placental disruption. There is a more severe
    form called HELLP syndrome, which can cause dysfunction of the liver, a
    breaking up of blood cells, and a dysfunction of platelets. None of these
    symptoms were ever exhibited by Martha, who reported a pregnancy without any
    problems.

[68]

I
    would not read this paragraph in the way suggested by the appellants. The trial
    judge was summarizing some of the evidence of Dr. Davies about the hypertensive
    disorders of pregnancy that he observed can occur along a spectrum. He
    described some of the consequences of severe pre-eclampsia, which could lead to
    eclampsia or seizures in the mother. The more severe form referred to by the
    trial judge as HELLP syndrome, was described by Dr. Davies as at the end of the
    spectrum of pre-eclampsia where abnormal liver function, a breaking down of
    blood vessels and low platelet count could occur. The trial judge concluded
    that none of these symptoms, that is, symptoms of a severe form of
    pre-eclampsia, were exhibited by Martha.

[69]

I
    disagree with the appellants assertion that the trial judge found that Martha
    did not suffer from pre-eclampsia because she did not exhibit
all
the
    symptoms along the spectrum of pre-eclampsia and eclampsia. The trial judge did
    not limit his conclusions with respect to pre-eclampsia to what he stated in para.
    92. Indeed, his review of the evidence and conclusions on this issue are
    contained elsewhere in his decision, at paras. 18 to 26. The reasons make it
    clear that the trial judge was aware of the indicia of pre-eclampsia that Dr.
    Laine would have had to be concerned about  elevated blood pressure and
    protein in the urine and/or edema, and these were the focus of his review on
    the question of whether Dr. Laine had properly responded to Marthas
    hypertension, and whether Martha was pre-eclamptic.

[70]

Accordingly,
    I would not give effect to this ground of appeal. The appellants have not met
    their burden of proving that the trial judge made any palpable and overriding
    error in respect of his conclusions regarding pre-eclampsia.

Issue Two  Standard
    of Care

[71]

The
    appellants submit that Dr. Laine breached the standard of care by failing to
    refer Martha to an obstetrician or to induce Martha a week or two before her
    actual delivery in response to her elevated blood pressure.

[72]

Specifically,
    the appellants assert that the trial judge erred in not according weight to Dr.
    Laines own admissions during his evidence at trial that his conduct had fallen
    below the standard of care.

[73]

Dr.
    Laine acknowledged that his practice at the time focused on low-risk
    pregnancies, that Martha was not a low-risk case, and that, when faced with her
    elevated blood pressure on February 19, 1993, he should have considered
    referring Martha to an obstetrician. Dr. Laine admitted that he had no
    experience in dealing with mothers with hypertension, and that travel from
    Okogi Post to Thunder Bay or Geraldton to see an obstetrician posed no
    financial or health barriers to Martha. Dr. Laine also admitted that, when
    faced with Marthas high blood pressure and a suspicion of pre-eclampsia during
    the last pre-delivery appointment, he should have erred on the side of
    delivering the baby. Dr. Laine acknowledged that, by March 31, Marthas
    pregnancy was at term and that he did not consider inducing Martha into labour.
    Dr. Laine admitted that it would have been better to deliver the baby at that
    time, rather than to prescribe medication such as Vasotec that could have
    potentially harmed the fetus.

[74]

While
    the appellants point to these alleged admissions as evidence that Dr. Laine, in
    his own words, fell below the standard of care, the respondent argues that this
    evidence must be considered in its proper context. Dr. Laine was testifying
    many years after the events in question, with little memory of the details and
    with hindsight. He was clearly his own worst critic. What is important is that
    the evidence of the other expert witnesses, which was referred to and relied
    upon by the trial judge, did not support a finding that Dr. Laine was in breach
    of the standard of care in failing to induce Martha or to refer her to an
    obstetrician.

[75]

I
    agree with the respondents submissions. The trial judge noted that Dr. Laine
    was honest and straightforward in his testimony, but had a memory of events
    from 20 years ago that was far from sure. The trial judge also noted that
    many of the admissions of Dr. Laine were in response to hypothetical
    questions.

[76]

This
    is evident from the various passages in Dr. Laines cross-examination that the
    appellants focused on during the appeal. Dr. Laines purported admissions that
    he ought to have referred Martha to an obstetrician or induced were premised on
    the absence of information as to whether there was protein in her urine, to
    rule out pre-eclampsia. The evidence was however that the urinalyses were
    performed, even if the results were missing, and that Dr. Laine never
    considered Martha to have pre-eclampsia. In these circumstances, there was no
    error in the trial judges approach to Dr. Laines admissions. It would have
    been an error for the trial judge to have accepted such evidence, out of
    context, as determinative of the question of whether Dr. Laine breached the
    standard of care, and to have ignored all of the other evidence.

[77]

Accordingly,
    there was no error on the part of the trial judge in his treatment of the
    evidence of Dr. Laine on the question of standard of care. Moreover, his
    conclusion that Dr. Laine did not breach the standard of care in failing to
    consult an obstetrician or to induce Martha was well-supported by the evidence.

[78]

Whether
    consultation with an obstetrician was required depended on the grade of
    Marthas pregnancy, based on Taylors growth and other risk factors. The trial
    judge accepted the opinion of all of the experts, except Dr. Davies, that this
    was a Grade B pregnancy and that it was not a breach of the standard of care
    for Dr. Laine not to have referred Martha to an obstetrician. In any event,
    there was no evidence that a referral to an obstetrician would have changed the
    outcome.

[79]

As
    for induction, the trial judge concluded that the decision to wait rather than
    to induce was a clinical judgment and did not fall below the standard of care.
    In this regard he accepted the opinion of Dr. Oppenheimer, and ultimately the
    concession of the appellants expert Dr. Rachlis, that induction was not
    required. The key considerations were that Taylors fetal growth appeared
    normal and there was no evidence of protein in the urine. The non-stress tests
    were normal. All of the experts agreed that up to the time of delivery, there
    were no signs of any problem with the fetus.

[80]

In
    support of their position that Dr. Laine should have induced Martha in late
    March or early April, the appellants rely on Dr. Davies statement that, had
    Martha been induced on March 26 or March 31 Taylor could have avoided the
    complications associated with Marthas hypertension.

[81]

It
    is apparent from a review of Dr. Davies evidence however that this opinion was
    tied to his assertion that enalapril was the cause of Taylors hypoxia. As
    such, induction should have occurred rather than the prescription of a risky
    drug. Again, that theory was rejected by the trial judge and is not argued on
    appeal.

[82]

For
    these reasons, I would not give effect to this ground of appeal. The appellants
    have not demonstrated any palpable and overriding error in the trial judges
    consideration of the evidence and findings with respect to standard of care.

Issue Three  Causation

[83]

The
    appellants contend that the trial judge erred in failing to find that Marthas
    untreated pre-eclampsia or high blood pressure created hypoxia
in utero
in
    the hours leading up to delivery, which reduced Taylors ability to withstand
    the stresses of labour. According to the appellants, had Martha been induced,
    Taylors injuries would have been avoided.

[84]

There
    are two principal arguments here: first, that the trial judge did not properly
    consider, or misunderstood, this theory of causation after rejecting the
    Vasotec theory, and second, that in arriving at this conclusion, the trial
    judge erred in his treatment of certain evidence of Dr. Marrin, who testified
    as an expert witness called by the respondent.

[85]

During
    his cross-examination, Dr. Marrin was taken through a differential diagnosis
    as to the possible causes of the hypoxic-ischemic event. The appellants contend
    that it was Dr. Marrins opinion that the only possible causes after Vasotec
    and Atenolol were ruled out, were pre-eclampsia or Marthas hypertension.

[86]

The
    appellants rely on this evidence as the foundation for their argument
    respecting causation, but they assert that it was wrong for the trial judge to accept
    other evidence of Dr. Marrin, elicited in re-examination, to the effect that Taylors
    injury may have been caused by cord compression or difficult uterine
    contractions at birth. They argue that the trial judge seized on such comments
    and ignored the evidence and the appellants contention that such complications
    would have been tolerated by Taylor but for her hypoxia, and instead found that
    they actually caused her injuries. The appellants submit that a healthy baby
    would have withstood these normal rigours of labour, but that Taylor was
    vulnerable to the stresses of childbirth because of the hypoxic environment
    surrounding her. These conditions decreased the flow of oxygen to the uterus
    and placenta, reducing Taylors ability to withstand the stresses of labour.

[87]

There
    are a number of difficulties with the appellants submissions on this issue.
    First, an examination of the trial judges reasons shows that he did not misconstrue
    Dr. Marrins evidence or reject the appellants alternative theory unfairly;
    rather, as he was required to do, he reviewed the evidence relevant to this theory
    before concluding that the appellants had not established that Marthas
    hypertension caused Taylors outcome.

[88]

Second,
    the appellants theory of causation appears to rest on a specific passage from
    Dr. Marrins evidence elicited in cross-examination, and seeks to ignore the
    other evidence at trial, including that of the appellants own expert
    witnesses. The trial judge addressed that evidence in the context of the other
    evidence, including Dr. Marrins own evidence in re-examination.

[89]

Finally,
    the evidence at trial did not support the alternative theory of causation
    advanced by the appellants. The evidence was to the contrary  that Taylors
    outcome was caused by a sudden and acute interruption of oxygen at or during
    birth. There was no evidence to support the contention that, had Taylor been
    delivered early, this unfortunate event, which all the experts agreed was not
    foreseeable based on the progress of Marthas pregnancy, would have been
    avoided.

[90]

The
    trial judge gave careful consideration to the pre-eclampsia or hypertension
    theory of causation. At the outset of his analysis he noted that there were two
    theories of causation at trial: the Vasotec theory and the theory that the
    but for cause of Taylors injury was Marthas hypertension in the third
    trimester. He observed that this second theory had its roots in the evidence of
    Dr. Marrin, who, in cross-examination, provided a differential diagnosis in
    which he ruled out Atenolol and Vasotec as contributing to the hypoxic-ischemic
    event, and stated that the only two remaining causes were pre-eclampsia and a
    gradual increase in maternal blood pressure.

[91]

The
    trial judge noted, correctly in my view, that the hypertension causation
    argument was a difficult argument to make, as the appellants evidence on
    causation was all directed at enalapril. Indeed, Dr. Belik excluded Marthas
    high blood pressure as a significant factor affecting the fetus and Dr. Davies
    indicated that Marthas hypertension, without the addition of enalapril, would
    have been unlikely to cause such an outcome. Each of these experts implicated
    Vasotec as the but for cause, with Dr. Rieder expressing the opinion that
    Vasotec had caused hypotension in Taylor that made her unable to withstand the
    normal rigours of labour and birth.

[92]

The
    trial judge reviewed the relevant evidence. First, he had already concluded
    that Martha did not have pre-eclampsia, based on his acceptance that it was
    unlikely that Martha had a protein problem during the pregnancy and the absence
    of other symptoms. With respect to whether Marthas hypertension was a cause,
    the trial judge observed that Marthas blood pressure in the third trimester suggested
    only mild hypertension. As for its impact, he referred to the fact that the
    appellants expert witness Dr. Belik, when commenting on Dr. Marrins
    report, said that there may have been some placental insufficiency, but
    certainly not enough to hinder fetal growth. (Placental insufficiency would be
    an indicator of reduced oxygen to the fetus.) The trial judge also recalled
Dr. Davies evidence
that, if a hypoxic
    (decrease in oxygen) situation was occurring, it should show up on the fetal
    heart monitor strip, much of the time, as variations on the strip, and that the
    March 29 strip did not show such variations. The four ultrasounds taken
    throughout the pregnancy were reassuring, as were the fetal heart monitors, all
    suggesting that there was no cause for concern.

[93]

I
    pause here to observe that the trial judge was referring to evidence that was
    inconsistent with the appellants theory that Marthas hypertension had created
    a reduced oxygen environment or hypoxia
in utero
,

that in
    turn reduced Taylors tolerance for labour and delivery.

[94]

The
    trial judge concluded instead that there had been a sudden interruption of
    oxygen just at the time of Taylors birth. He noted: For the most part all
    witnesses agree that at some time during the few minutes between the end of the
    fetal heart monitor strip and Taylors birth an event occurred which led to her
    injury. We are not sure what that event was: at para. 99.

[95]

The
    trial judge then referred to Dr. Marrins re-examination, when he was asked specifically
    what would have accounted for the drop in oxygenation in the minutes before
    Taylors birth. Dr. Marrin responded:

Well, the - if I understand the question correctly, what will
    account for the drop in oxygenation is some - something fairly acute has
    happened during the course of the labour which has interrupted oxygen delivery
    to the baby. We don't really know what that something was, but the fall in
    oxygen delivery would have occurred - could have occurred quite rapidly
    reaching that inflection point where there is now a - a steady decline toward
    decompensation. I'm not sure if I understood the question correctly

[96]

Dr.
    Marrin was asked about the potential reasons for the drop in oxygenation. He
    stated:

Well they will include compression - compression of the blood
    vessels feeding the - the mother's blood vessels going to the uterus and
    supplying the placenta so that with each uterine contraction there will be some
    compression of those vessels and at least a transient or intermittent
    interruption of oxygen delivery to the placenta and therefore to the fetus.
    Another possibility is the next probably likely possibility, given that common
    things are common, is that there was some at least intermittent or at least
    partial compression of the umbilical cord such that the oxygen that was coming
    from the mother's body getting across the uterus to the placenta was not able
    to be delivered through the umbilical cord from the placenta to the baby. Those
    would be the two common scenarios for an intrapartum kind of hypoxic ischemic
    process. We talked about other more catastrophic things that may occur such as
    abruption of the placenta, but that we - we don't have evidence that that occurred
    here.

[97]

With
    respect to timing, Dr. Marrin testified:

I wonder if it may be important to clarify that this kind of
    decompensation could not occur, absent some very sudden change in oxygen
    delivery to the fetus, and have that child survive for more than a couple of
    hours in that kind of an environment. So, all of the discussion that we have
    had about whether or not there was placental sufficiency, to what degree there
    may have been interruption of sufficient oxygen delivery to the fetus, and to
    what extent Taylor may have shown that she was trying to adapt to that
    environment, those things would not by themselves create the scenario that we
    have outlined on the graph here. There has to have been a new, very substantial
    interruption of oxygen delivery to result in this, and the pattern that we
    discussed this morning illustrated here would likely be evolving over less than
    an hour, something in that range.

[98]

The
    trial judge concluded that the appellants had failed to prove that Marthas
    hypertension or pre-eclampsia were the cause of Taylors injuries.

[99]

In
    support of their causation argument, the appellants rely almost entirely on
    certain evidence of Dr. Marrin elicited in cross-examination, coupled with the
    testimony of certain witnesses (Dr. Belik and Dr. Davies) that, if Martha had
    been induced prior to March 31, the outcome would have been different.

[100]

Dr. Marrin was
    taken through a differential diagnosis in which he identified pre-eclampsia
    or Marthas hypertension as the remaining potential causes, after Vasotec and
    Atenolol were eliminated. It is apparent from the record however that Dr.
    Marrins evidence was carefully elicited, and somewhat circumscribed by the
    questions he was asked. The evidence must be considered in context. At one
    point in responding to the differential diagnosis line of questions, Dr.
    Marrin stated that he would add in umbilical cord compression during the
    labour as a cause of hypoxia ischemia leading to brain injury. Counsel however
    stated that there was no obstetrical evidence about that, and asked Dr. Marrin
    to focus on elements of the differential diagnosis for which there was clear
    evidence that those things existed. It is apparent from this discussion that Dr.
    Marrin was not purporting to offer a definitive opinion. In his re-examination
    he provided a more detailed explanation of what he believed had precipitated
    the sudden hypoxic-ischemic event leading to Taylors outcome.

[101]

Dr. Marrins
    opinion that there must have been a sudden and acute event that interrupted
    oxygen delivery to the fetus was consistent with that expressed by the other
    expert witnesses at trial. This was not, as suggested by the appellants, a new
    theory raised only during Dr. Marrins re-examination. Both Dr. Rieder and Dr.
    Belik testified that an acute and sudden interruption in oxygen occurred just
    before birth. Dr. Belik testified that the stress of labour caused the crash
in
    utero
before delivery (albeit he opined that Vasotec impaired Taylors
    ability to respond), and he acknowledged that other stresses at birth such as
    the umbilical cord around the neck, very forceful labour, or the babys
    position squeezing the umbilical cord could have caused the same situation. Dr.
    Rieder testified that the stress of birth and labour was the precipitating
    factor (although he also was of the view that enalapril prevented Taylor from
    responding well due to its effects on her).

[102]

In any event, it
    is incorrect to say that the trial judge accepted Dr. Marrins opinion about
    the possible causes of the sudden reduction in oxygen, as the cause in fact. It
    is more accurate to say that the trial judges conclusion was as he stated in
    para. 99, that we are not sure what that event was. His conclusion was that
    the [appellants] had failed to prove that Marthas hypertension or
    pre-eclampsia was the cause of Taylors injuries: at para. 101.

[103]

Ultimately, none
    of the experts at trial suggested that Marthas elevated blood pressure was
    responsible for the harm to Taylor. Dr. Oppenheimer testified that her blood
    pressure was consistent with mild hypertension, which characterization was
    accepted by the trial judge. Dr. Rachlis and Dr. Davies conceded that Marthas
    blood pressure readings were not dramatically high and that none of her
    readings qualified as severe hypertension, and Drs. Belik and Davies
    confirmed that Marthas hypertension did not have any material effect on
    Taylors level of oxygenation.

[104]

One final point
    here. The appellants argue that causation was made out because of the testimony
    of certain witnesses (Dr. Belik and Dr. Davies) that, if Martha had been
    induced prior to March 31, the outcome would have been different. As we have
    seen however these conclusions were tied to their opinion that Vasotec caused
    hypotension in Taylor, and that Dr. Laine, instead of prescribing this drug,
    ought to have induced Martha in response to her elevated blood pressure.

[105]

In the end, the
    appellants have not established any error in the trial judges conclusions with
    respect to causation, and in particular their theory of causation based on
    Marthas hypertension. As such, I would not give effect to this ground of
    appeal.

Issue Four  Informed Consent

[106]

The trial judge
    concluded that Dr. Laine was not obliged to inform Martha of the risks
    associated with Vasotec or the alternative of induction. Dr. Laine was not
    aware of Vasotecs pregnancy risks when he prescribed the drug, and he had
    decided, through a proper exercise of clinical judgment, that induction was not
    indicated. As such, it made no sense for him to inform Martha of the risks or
    alternatives. And, even if Dr. Laine had presented warnings and alternatives to
    Martha, the trial judge found that Martha would have likely followed Dr.
    Laines advice, based on the history of their relationship.

[107]

On the issue of
    informed consent, the appellants submit that the trial judge erred in
    concluding that Dr. Laine did not need to warn Martha of Vasotecs risks or of
    its alternatives, such as the option of induction. The appellants submit that a
    reasonable person, informed of Vasotecs risks and alternatives, would have
    opted for induction. However, they contend, it was impossible to obtain
    Marthas informed consent because of Dr. Laines lack of knowledge of Vasotecs
    risks. Again, they point to Dr. Laines acknowledgment that he should have
    induced rather than prescribed Vasotec to Martha.

[108]

In my view, the
    appellants cannot succeed on this ground of appeal. The question here is
    whether Dr. Laine was required under the standard of care in 1993 to have
    informed himself of Vasotecs risks and to have disclosed those risks to Martha,
    and if so whether that would likely have changed the outcome. As the evidence
    at trial showed, Dr. Laine was not in fact aware of any existing or developing
    concerns with Vasotec when he prescribed a low dose of the drug to Martha, and
    knowledge regarding enalapril was evolving at the time. As for the option of
    induction, the standard of care did not require an induction. Dr. Laine did not
    consider induction because the results of the investigations and surveillance
    during the pregnancy were normal and reassuring. Induction had its own risks,
    and at the time could not be done at the Geraldton District Hospital. There was
    no error in the conclusion that the standard of care did not require Dr. Laine
    to offer Martha the option of being induced into labour, and there was no
    evidence in any event that, had the option of induction been presented, the
    injury to Taylor would have been avoided.

[109]

Accordingly, I
    would not give effect to this ground of appeal.

CONCLUSION

[110]

For all of these
    reasons I would dismiss the appeal. I would make no order as to costs, as the
    parties indicated that they have resolved the question of costs between
    themselves.

Released: KMvR SEP 19, 2014                                       
    K. van Rensburg J.A.

I agree E.E. Gillese J.A.

I agree C.W. Hourigan J.A.





[1]
In these reasons, consistent with how counsel and the trial judge referred to
    the parties throughout, I will refer to Taylor Achneepineskum and her mother,
    Martha Achneepineskum, by their first names.



[2]
The experts were referring to the
Guide to
    Pregnancy Risk Grading

in the
Ontario Antenatal Record
.


