



COURT OF APPEAL FOR ONTARIO

CITATION: Goodwin v. Olupona, 2013 ONCA 259

DATE: 20130425

DOCKET: C53018

Laskin, Blair and Epstein JJ.A.

BETWEEN

Adam Goodwin by his litigation guardian Debra
    Goodwin, Debra Goodwin, Brian Goodwin, Rachel Goodwin by her litigation
    guardian Debra Goodwin, and Jessica Goodwin by her litigation guardian Debra
    Goodwin

Plaintiffs

and

Dr. Samuel Olupona
, Dr. Orest Sochaniwshyj,
    Dr. Edward Cormode, Dr. Jane Doe,
Nurse
Jane Doe I
Sulabha Burhanpurkar
,
Nurse
Jane Doe II
Bernice Thibedeau
, and
Orillia Soldiers Memorial
    Hospital

Defendants/
Appellants
/
Respondent

Steven Stieber and Elizabeth Bowker, for the appellants

Peter W. Kryworuk and Cynthia B. Kuehl, for the
    respondent

Heard: October 2, 2012

On appeal from the judgment of Justice Bruce A. Glass of
    the Superior Court of Justice, sitting with a jury, dated November 5, 2010.

Epstein
    J.A.:

A.

Overview

[1]

On August 22, 2002, Debra Goodwin gave birth to twins. The first,
    Jessica, was delivered vaginally without complications. The second, Adam, was
    delivered by Caesarean section (C-section). Unfortunately, Adam was injured
    prior to birth and, shortly after he was born, was diagnosed with spastic
    quadriplegia. Mr. and Ms. Goodwin, on their own behalf and on behalf of their
    three children, brought a negligence action against the health professionals
    involved in Adams delivery and against the hospital where Adam was born.

[2]

The defendants in that action were:

·

Dr. Samuel Olupona, the physician in charge of the twins delivery;

·

Nurse Sulabha Burhanpurkar, the nurse primarily responsible for Ms.
    Goodwins care until 7:00 p.m., which was a little more than an hour before the
    first baby was born;

·

Nurse Bernice Thibedeau, the nurse who replaced Nurse
    Burhanpurkar, and the nurse primarily responsible for  Ms. Goodwins care
    between 7:00 p.m. and immediately prior to the twins births; and

·

the Orillia Soldiers Memorial Hospital.

[3]

A few days into the trial, the plaintiffs settled with Dr. Olupona. The
    trial therefore proceeded as a cross-claim by Dr. Olupona against the hospital
    and the two nurses.

[4]

After a 32-day jury trial, followed by 8 days of deliberations, the jury
    returned a verdict finding Nurse Burhanpurkar 75 per cent liable and the
    hospital 25 per cent liable for Adams injuries. The jury found no negligence
    on the part of Dr. Olupona or Nurse Thibedeau and the claims against them were
    therefore dismissed.

[5]

Nurse Burhanpurkar and the
    hospital
appeal.
[1]


[6]

The first main ground of appeal is that the jury returned an
    unreasonable verdict. While, in different respects, both appellants challenge the
    findings of negligence, the real focus is causation. The appellants submit
that
the jurys verdicts were unreasonable as
    there was insufficient evidence to establish that any established negligence on
    their part caused Adams injuries.

[7]

As a second main ground of appeal, the appellants submit that the charge
    to the jury contained reversible errors.

[8]

For the reasons that follow, I would dismiss the appeal. In my view,
    there was sufficient evidence to support the jurys conclusions that both Nurse
    Burhanpurkar and the hospital failed to meet the requisite standard of care, and
    that their negligence caused Adams injuries. The verdict in these respects cannot
    be said to be unreasonable. Further, I find no error in the charge to the jury.

B.

BACKGROUND

[9]

At 2:00 p.m. on August 22, 2002, Ms. Goodwin checked into the hospital
    for an elective induction to give birth to twins. There was no indication at
    that point that the babies were other than healthy. At approximately 4:30 p.m.,
    Dr. Olupona performed an ultrasound. The first twin, Jessica, was in the proper
    vertex (head-down) position. However, the second twin, Adam, was in a footling breech
    position, meaning that with a vaginal delivery one or both feet would come out
    first. The doctor did not notify anyone about the twins presentation or his
    birth plan. Nurse Burhanpurkar, the nurse primarily in charge of Ms. Goodwins
    care at that time, was present during the ultrasound and had access to Dr. Oluponas
    recorded findings in the chart.

[10]

At
    about 4:45 p.m., Dr. Olupona examined Ms. Goodwin and found her to be four
    centimetres dilated. He broke her water to induce labour, a process known as
    Artificial Rupture of the Membrane (ARM). Shortly after administering the
    ARM, Dr. Olupona notified the anaesthetist and the paediatrician of the
    impending delivery, and ordered blood work. He made a further order, noted on Ms.
    Goodwins chart, for an Epidural PRN. This order directs the nurses to provide
    an epidural if needed or if requested by the patient. The administration of an
    epidural is a two-step process. First, the nurse establishes a mainline intravenous
    with saline solution. Second, an anaesthetist inserts a tube into the patients
    lower back through which the pain-relieving substances are delivered. After
    writing his orders, Dr. Olupona returned to his office, a three-minute walk
    from the hospital.

[11]

Ms.
    Goodwin began to have contractions at about 5:00 p.m. These contractions,
    together with the extent of her dilation, meant that sometime after that point,
    and by 6:00 p.m. at the latest, Ms. Goodwin was in active labour.

[12]

Mr. and
Ms. Goodwin
s uncontradicted evidence is that
she asked an
    unidentified nurse for an epidural at 6:00 p.m., and once again between 6:30
    p.m. and 6:45 p.m
.
She was not given one.
Nurse Burhanpurkar
testified that she was not
    aware of the requests or that Ms. Goodwin was even in labour
.

[13]

While Nurse Burhanpurkar was responsible for Ms. Goodwins care,
    the twins heart rates were not monitored continuously
using an electronic foetal heart rate monitor.
Rather, they were
    checked only twice  at 4:45 p.m. and 6:00 p.m. using a portable doctone, a
    device that measures the heart rate at a point in time. The results of the FHR
are an indication of the health of the foetus.

[14]

At 7:00 p.m. Nurse Thibedeau took over from Nurse
    Burhanpurkar and assumed care of
Ms. Goodwin.  Nurse Thibedeau was incorrectly
    advised that both twins were in the vertex (head first) position. She moved Ms.
    Goodwin into the labour and delivery area. N
o
    one there was aware
that the second twin was in
footling breech position. Nurse Thibedeau checked the FHRs with a
    doctone sometime between 7:00 p.m. and 7:30 p.m. The rates were within the
    acceptable range.

[15]

Nurse Thibedeau inserted
an
    intravenous line in preparation for an epidural. Dr. Rosati, the
anaesthetist on call,
had been advised of the
    need to provide Ms. Goodwin with an epidural. However, he
was busy in
the
O.R.
with another patient and indicated he could not attend to Ms. Goodwins needs
    until the completion of the surgery in which he was involved.

[16]

Dr.
    Orest Sochaniwskyj, who was filling in for Ms. Goodwins regular family doctor,
    contacted the hospital shortly before 7:30 p.m. to inquire after Ms. Goodwin. Nurse
    Linda Veitch advised him that Ms. Goodwin had requested an epidural. Dr.
    Sochaniwskyj told the nurse to immediately contact Dr. Olupona. He then left
    for the hospital. Nurse Thibedeau commenced electronic FHR monitoring at 7:56
    p.m., and normal heart rates were registered.

[17]

When
    Dr. Sochaniwskyj arrived at the hospital, Ms. Goodwin had been transferred from
    the labour and delivery room to case room two, and delivery was imminent. Dr. Olupona,
    who was not contacted until 8:00 p.m., arrived at the hospital at 8:11 p.m.,
    just in time to supervise Dr. Sochaniwskyjs vaginal delivery of Jessica at
    8:24 p.m. An epidural had not been administered.

[18]

Following
    the Jessicas delivery, Ms. Goodwin advised Dr. Olupona that she had been
    asking for an epidural since 6:00 p.m. Nurse Thibedeau testified that Dr. Olupona
    was shocked and angry that his order for an epidural had not been followed.

[19]

Dr.
    Olupona examined Ms. Goodwin and conducted an ultrasound. The second twin
    remained in breech position. Dr. Olupona had no choice but to deliver the
    second baby by C-section in the O.R.; he could not deliver a breech baby
    vaginally unless the mother had an epidural. He also could not perform a
    C-section in case room two as it was poorly lit and the anaesthesia machine was
    not functioning well. Dr. Olupona ordered the O.R. to be made ready quickly.

[20]

Nurse
    Thibedeau monitored the FHR of the second baby at 8:35 p.m. and observed a
    deceleration from the normal range. She turned Ms. Goodwin on her side, the
    standard practice under such circumstances, and the heart rate returned to
    normal. The heart rate was monitored once again at 8:45 p.m., and the results
    were normal.

[21]

At
    8:57 p.m., Ms. Goodwin was moved into the O.R., and Adam was delivered at 9:24
    p.m. by C-section. He was flat, and required resuscitation. He was
    subsequently diagnosed with spastic quadriplegia.

C.

ISSUES

[22]

The
    appellants advance two main grounds of appeal:

1)

The jurys verdict was
    unreasonable and unsupported by the evidence with respect to its conclusions that:

a.

having accountable
    supervision of nursing staff and providing adequate resources in case room two
    was part of a hospitals standard of care;

b.

Nurse
    Burhanpurkars negligence in failing to properly monitor the FHR, and the
    hospitals negligence in failing to supervise and provide adequate facilities, caused
    Adams injury; and

c.

having a plan of
    care was part of a nurses duty of care, and Nurse Burhanpurkars negligence in
    failing to prepare one and her failure to administer an epidural in a timely
    manner caused Adams injury.

2)

The jury charge was
    deficient in that the trial judge failed to:

a.

properly explain
    the legal test for causation;

b. mention certain material facts; and

c. set out the standard of care of nurses.

D.

ANALYSIS

1)

Unreasonable verdict

[23]

It
    is well-established that a jury verdict will be set aside only if it 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. Further, [w]here there is
    some evidence to support the verdict, a jury will be accorded a high degree of
    deference:
Gutbir (Litigation guardian of) v. University Health Network
,
    2012 ONCA 66, 287 O.A.C. 223, at para. 5.

[24]

At
    the beginning of oral argument, the appellants conceded that there was sufficient
    evidence upon which the jury could find that Dr. Olupona met the standard of
    care. Nevertheless, in order to provide context for the causation analysis
    central to this appeal, I will here set out some of the evidence that supported
    this verdict.

[25]

Dr.
    Andrew Browning, qualified as an expert in obstetrics, gave evidence on behalf
    of Dr. Olupona. Dr. Browning testified that an elective primary C-section was
    much less common in 2002 when Adam was born. In his opinion Dr. Oluponas plan
    to deliver the twins vaginally and only resort to a C-section if necessary was therefore
    reasonable. The fact that the second twin was in breech position did not, in
    Dr. Brownings view, change the appropriateness of Dr. Oluponas birth plan, since
    he had experience in, and felt comfortable with, performing vaginal breech
    extractions.

[26]

Dr.
    Browning further opined that Dr. Oluponas order of an epidural PRN was also
    standard protocol. In fact, he said that an order that one be placed immediately
    or at a specified time would not have been reasonable, as the timing of giving
    the mother an epidural depended on the onset of labour.

[27]

Dr.
    Browning also supported Dr. Oluponas actions after being summoned to the
    hospital. He agreed that when Dr. Olupona became aware that his order for an
    epidural had not been complied with, the only reasonable option for Adams
    delivery was to perform a C-section in the O.R.  Dr. Olupona did what he could
    to hasten the delivery of the second twin.

[28]

The
    appropriateness of Dr. Oluponas response to the urgency of the situation was
    also supported by Nurse Thibedeau, who testified that Dr. Olupona not only ordered
    the O.R. to be prepared quickly but also actually assisted the nurses in preparing
    the O.R.

[29]

In
    sum, the evidence indicated that Dr. Olupona decided upon a reasonable birth
    plan, gave reasonable directions to the nursing staff, and reasonably expected
    the nurses to follow his orders and otherwise carry out their nursing duties in
    accordance with the standard of care expected of them.

a.

Did the
    jury err in finding negligence on the part of the hospital given the lack of
    evidence as to the hospitals standard of care?

[30]

The
    hospital submits that since Dr. Olupona called no expert evidence on the
    hospitals standard of care, the jury had no basis to conclude that the
    hospital was negligent.

[31]

In
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, the Supreme Court opened the
    door for a jury to decide upon a standard of care without the assistance of
    expert evidence. The court held that a jury was free to find that standard
    practice in the medical industry violated the standard of care, and
    consequently, the jury could decide for itself what constitutes the standard of
    care even where expert evidence says otherwise.

[32]

Whether
    expert evidence is required turns on whether the nature of the issue can be
    decided on the basis of the ordinary knowledge possessed by the jury or, on the
    contrary, the matter requires expert evidence because it is beyond the ken of
    the average juror:
ter Neuzen
, at para. 55. See also Ellen I. Picard
    and Gerald B. Robertson,
Legal Liability of Doctors and Hospitals in Canada
,
    4th ed. (Toronto, Ont.: Thomson Carswell, 2007), at p. 460.

[33]

Here
    the jury identified the hospitals breach of the standard of care as being its
    failure to provide appropriately trained nursing staff and ensure that they
    were sufficiently supervised, and its failure to provide adequate equipment and
    resources in its labour and delivery facility.

[34]

Identifying
    these fundamental obligations  that a hospital must provide staff and
    facilities capable of meeting the basic needs of patients  is well within the
    ken of the average juror. These responsibilities form the very foundation of
    a hospitals duties to its patients.

[35]

I
    note that while not dispositive, during pre-charge discussions, appellants
    trial counsel made no objection to the charge on the hospitals standard of
    care and in fact resisted efforts to make changes. Nevertheless, I see no error
    as, in my view, the evidence of the two doctors, combined with the conventional
    knowledge of the jurors, was sufficient to equip the jury with the information
    necessary to determine the hospitals standard of care in these areas.

[36]

The
    jurys findings that the hospital did not meet its standard of care were also borne
    out by the evidence.

[37]

In
    terms of the hospitals obligation to ensure proper training and supervision of
    its nurses, the jury had to look no further than Nurse Burhanpurkar herself who
    admitted that she had limited experience caring for a woman pregnant with
    twins. It was open for the jury to find that Nurse Burhanpurkar was not
    sufficiently competent to care for Ms. Goodwin, and attribute part of this lack
    of competence to the hospitals failure to train and supervise its nurses.

[38]

In
    terms of the hospitals obligation to maintain and equip its facilities to the
    point that they were functional and safe, as I mentioned above, the jury heard
    from Dr. Robinson and Dr. Olupona to the effect that they would not operate in
    case room two as the lighting was bad and the anaesthetic equipment was
    unreliable. Again, maintaining the physical plant and equipment at a level
    capable of meeting the patients needs is the hospitals responsibility.

[39]

In
    my view, the jurys verdict concerning the hospitals negligence was supported
    by the evidence and is reasonable.

b.

Was the jurys finding
    that the appellants negligence caused Adams injuries unreasonable?

[40]

Nurse
    Burhanpurkar concedes that she fell below the standard of care in failing to continuously
    monitor the FHRs after Ms. Goodwin entered labour; Guidelines from the Society
    of Obstetricians and Gynaecologists of Canada indicate that with the
    commencement of labour the FHR should be continuously monitored. Additional evidence
    concerning this obligation was provided by Nurse Kathryn Doren, who gave expert
    testimony that as soon as regular contractions began, a nurse in Nurse
    Burhanpurkars circumstances should have commenced continuous FHR monitoring to
    ascertain a baseline heart rate.


[41]

I have already held that the jurys verdict that the
    hospital deviated from its standard of care is reasonable.


[42]

The appellants negligence is established. However, t
o succeed in his cross-claim, Dr. Olupona had to show that the
    appellants negligence caused Adams damages.

[43]

This is the core of the appellants arguments.
    They submit
that there was insufficient evidence upon which a properly
    instructed jury could reasonably have found that the negligence of Nurse
    Burhanpurkar and the hospital caused Adams injury.


i.

The applicable law

[44]

In
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, the Supreme
    Court reaffirmed the primacy of the but for test in causation, and in
    particular its application in a robust, common-sense fashion. The court made it
    clear, at paras. 9 and 38, that in concluding that causation has been
    established, the trier of fact may rely on inferences that are reasonably
    available on the evidence:

The but for causation test must be applied in a robust common
    sense fashion.
There
    is no need for scientific evidence of the precise contribution the defendants
    negligence made to the injury
.



In many cases of causal uncertainty, it is conceivable that
    with better scientific evidence, causation could be clarified. Scientific
    uncertainty was referred to in
Resurfice

[
Corp. v. Hanke
, 2007 SCC 7, [2007] 1 S.C.R. 333]
    in the course of explaining the difficulties that have arisen in the cases.
    However, this should not be read as ousting the but for test for causation in
    negligence actions.
The
    law of negligence has never required scientific proof of causation; to repeat
    yet again, common sense inferences from the facts may suffice
.

[45]

This
    issue was also discussed recently in
Goodman v. Viljoen
, 2012 ONCA 896,
    299 O.A.C. 257. Doherty J.A. (dissenting, but not on this point) reviewed
Clements
,
    at para. 76:

The robust and pragmatic approach takes into account the nature
    of the factual issues underlying the causation question and the kind of
    evidence that the parties are reasonably capable of producing on those issues.
    The approach acknowledges that the causation inquiry is essentially a practical
    one based on the entirety of the evidence and made with a view to determining
    whether the plaintiff has established causation on the balance of probabilities
    and not to a scientific certainty.

See also
Ediger v. Johnston
, 2013 SCC 18, at
    para. 36.

[46]

It
    can be seen that this approach involves a consideration of two things  the
    nature of the factual issues underlying causation and the kind of evidence the
    parties are able to adduce.


ii.

The jurys
    findings

[47]

My
    analysis of whether there was evidence to support the jurys conclusions
    regarding causation starts with the specific acts of negligence found by the
    jury. Its answer to the question of whether Nurse Burhanpurkar fell below the requisite
    standard of care was as follows:

-

Nurse
    Burhanpurkar was aware of her responsibilities of a high risk pregnancy, but
    failed to perform the majority of her duties, which were critical to the well-being
    of Debra Goodwin + twins.

-

Nurse
    Burhanpurkar failed to follow Dr. Oluponas orders.

-

Nurse
    Burhanpurkar did not perform external [foetal] monitoring for 30 minutes or
    longer and did not record an intrapartum flow sheet at the time of formal
    admission of Debra Goodwin.

-

Nurse
    Burhanpurkar failed to create a plan of care that addressed the patients[]
    needs and well[-] being.

-

Nurse
    Burhanpurkar did not perform adequate monitoring for the duration of her shift,
    such as [foetal] heart monitoring, monitoring of contractions and progress of
    labour.

-

Nurse
    Burhanpurkar did not follow[]up on Debra Goodwin[]s progress + whereabouts.

-

Nurse
    Burhanpurkar did not perform adequate communication + documentation including
    no progress notes by Nurse Burhanpurkar.

[48]

The
    jury also concluded that the hospital breached its standard of care,  by
    failing to have accountable supervision of nursing staff, and fail[ing] to
    provide adequate equipment and resources in case room #2.

[49]

The
    jury found that Nurse Burhanpurkars negligence caused Adams injuries as
    follows:

By not monitoring Debra Goodwin, time of labour was unknown and
    the patient was not transferred from the triage area to the labour and delivery
    unit. Had this transfer been conducted, the labour and delivery nurses would
    have had time to prepare[,] including starting an IV and arranging for an
    epidural. In being transferred to the labour and delivery unit the patient
    would have received one on one monitoring + care, and Dr. Olupona would have
    been notified in regards to patient[]s progressive condition.

By not monitoring Debra Goodwin + babies[,] any signs of
    distress were not recorded or acted upon[,] which could have accumulated and
    most likely contributed to Adam Goodwins brain injury.

Debra Goodwins request[s] for an epidural were not acted upon
    nor did Nurse Burhanpurkar determine that the patient receive an epidural,
    therefore the patient did not receive an epidural in a timely fashion[,] which
    directly contributed to the events that happened after, which most likely [led]
    to Adam Goodwins brain injury.

Nurse Burhanpurkar did not have a proper plan of action that
    addressed Debra Goodwin and babies needs + well-being and relied upon the
    patient to notify her of any changes in her condition. This resulted in the
    next shift that began at 7:00 p.m. not having a progressive report of the
    patient[]s condition[,] which contributed to the actions that were undertaken
    later which[,] most likely have led to Adam Goodwins brain injury.

[50]

With
    respect to the hospital, the jury concluded:

We believe that had [accountable supervision of nursing staff]
    been in place[,] the monitoring of Debra Goodwin and babies[,] which involved a
    high risk pregnancy in a level 2 hospital would have indicated any distress
    during the progression of labour and actions taken most likely would have
    prevented the brain injury of Adam Goodwin.

[51]

An
    examination of the jurys answers to the questions involving the appellants
    negligence and how they caused Adams injury discloses two prevailing themes 
    lack of awareness of the progress of Ms. Goodwins delivery and the babies
    health, and delay in the delivery.

[52]

Certain
    facts relevant to these themes are not in dispute:

·

Ms. Goodwin went into active labour sometime between 5:00 p.m. and
    6:00 p.m;

·

Dr. Olupona was not called to come to the hospital until 8:00 p.m;

·

notwithstanding Ms. Goodwins requests for an epidural between
    6:00 p.m. and 7:00 p.m., the first steps to comply with her request were not
    taken until after 7:00 p.m., at which time the anaesthetist was unavailable;

·

arrangements for an O.R. to be made available did not start until
    about 8:34 p.m., and the O.R. was only properly prepared at 8:57 p.m.;

·

Nurse Burhanpurkar did not monitor the FHRs in accordance with
    her obligations;

·

Nurse Burhanpurkar failed to administer an epidural in accordance
    with Dr. Oluponas order; and

·

Nurse Burhanpurkar did not maintain any notes of Ms. Goodwins
    progress and treatment.


iii.

The expert
    evidence

[53]

Two
    experts were called on the issue of causation.

[54]

Characteristic
    of medical malpractice litigation, the jury was required to assess the
    competing opinions of these highly qualified experts and come to conclusions
    based on factual uncertainty.

[55]

Dr.
    Michael Marrin, a neonatologist qualified to provide expert opinion evidence with
    respect to the nature and timing of the injury to Adam, testified on behalf of
    the appellants. Dr. Marrins view was that Adams neurological problem was, on
    balance, due to a sudden hypoxic ischemic injury (insufficient oxygen to the
    tissues of the body) that occurred less than 30 minutes, and more likely less
    than 20 minutes, before birth. On his theory, FHR monitoring would not have
    revealed any abnormalities, and could not have prevented the injury.

[56]

Dr.
    James Low, an expert in foetal monitoring and asphyxia, was qualified as an
    expert in obstetrics and gynaecology on the cause and timing of brain injuries
    suffered by Adam. He gave evidence on behalf of Dr. Olupona.  Dr. Lows opinion
    was that it was more likely that Adam had sustained intermittent
foetal hypoxia
     periodic episodes in which Adams tissues were deprived of
oxygen. Over
    time, these short recurrent episodes of foetal asphyxia had a cumulative effect
    that sensitized or weakened the foetus to the point where the brain was damaged.

[57]

As
    can be seen, the primary divide between the two respected experts was over the
    timing of the event that may have caused Adams injury. I use the word may as
    neither doctor could say with certainty the circumstances that led to Adams
    injury. Both experts offered well-thought out and well-researched opinions, but,
    by their own admission, the persuasiveness of their opinions was necessarily
    diminished by the evidentiary uncertainty that is inescapable when dealing with
    injuries in utero.

[58]

Dr.
    Low candidly acknowledged the challenges presented by the immutable scientific
    reality that in these circumstances, clinical evidence needed to establish
    causation with any degree of scientific certainty is simply not available in
    the vast majority of cases. He went out of his way to qualify his evidence
    using phrases such as we are just speculating and we cant say for sure. These
    qualifications notwithstanding, Dr. Low did provide the jury, as best he could,
    with a causative route to Adams injury and with clinical evidence to support
    that route. I refer to evidence of intrauterine growth retardation and of the
    post-delivery discovery of elevated nucleated red blood cells.

[59]

While
    Dr. Low cautioned the jury about his views, the jury was entitled to accept
    them, and evidently did so.  . The jury found that Adams injury occurred
    between 8 a.m. and birth and not necessarily only in the last twenty or thirty
    minutes. This conclusion is inconsistent with Dr. Marrins theory.  As well,
    the jurys causation answers set out above demonstrate that the time period
    upon which it focussed in finding causation was when Ms. Goodwin was in labour.

[60]

While
    the vexing question of causation did not find a definitive answer in the expert
    evidence, the jury accepted the opinion of a decidedly qualified expert who was
    careful not to overstate the certainty with which he held his views and who was
    able to point to supporting clinical evidence.

[61]

By
    subscribing to Dr. Lows view, the jury accepted, on balance, that Adams brain
    injury resulted from the combined effect of intrauterine growth retardation,
    intermittent hypoxia episodes during labour, and then possible asphyxia within
    the last 20 minutes before birth.

[62]

However,
    the appellants submit that even on Dr. Lows theory of causation, the evidence
    does not support the conclusion that Adam would not have been injured but for
    the negligence of Nurse Burhanpurkar and, through her, the hospital.


iv.

The causal link

[63]

I
    now to turn to the analysis of this issue.

[64]

According
    to Dr. Low, the episodes of hypoxia, upon which his opinion of what caused
    Adams injury is based, manifest themselves in sudden, brief decelerations of
    the FHR. An episode of hypoxia can be detected by monitoring the FHR. The
    longer Adam is in the womb without proper FHR monitoring, the greater the risk
    that episodes of hypoxia go undetected. The greater the number of undetected
    episodes of hypoxia Adam experienced, the greater the danger of asphyxia
    leading to brain injury.

[65]

This
    evidence supports the finding that had Nurse Burhanpurkar monitored the FHRs as
    she was required to do, and had she detected periodic decelerations of Adams
    heart rate, Dr. Olupona would have been alerted and he would have delivered
    Adam immediately. The evidence is clear that Adam could have been delivered
    hours earlier than he was. Earlier delivery could have resulted in Adam being
    born before his injury.

[66]

In
    oral argument, the appellants relied on the lack of evidence that any hypoxic
    episodes actually took place while Ms. Goodwin was in Nurse Burhanpurkars care
    to support their argument that since causation could not be established the jurys
    verdict was unreasonable. Specifically, if no hypoxic episodes took place
    between 5:00 p.m. when Ms. Goodwin went into labour, triggering the requirement
    to monitor the FHR on a continuous basis, and 7:00 p.m. when Nurse Burhanpurkar
    went off duty, then her negligence in failing to monitor the FHRs could have no
    impact on the injury caused in accordance with Dr. Lows theory.

[67]

I
    am not persuaded by this argument.

[68]

First,
    direct evidence of causation is not necessary. This courts recent decision in
Gutbir
was a case, where, as in this case, a baby was born with a permanent brain
    injury. The jury in that case found the cause of the injury to be prolonged
    partial hypoxic insult  a continuous deprivation of oxygen prior to birth. As
    in this case, the nurse in
Gutbir
breached her duty of care by failing
    to monitor the FHR. The jury found, on a balance of probabilities, that heart
    rate abnormalities that should have been detected were not.

[69]

In
    upholding the jurys verdict, this court held, at para. 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 [electronic foetal monitoring] had been used or [manual
    intermittent auscultation] 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 jury's answer
    tracks Dr. Carson's 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.

[70]

I
    acknowledge that the medical opinions expressed in
Gutbir
were
    stronger and more certain than the opinion Dr. Low offered in this case. Further,
    the jury in
Gutbir

expressly acknowledged which theory of
    causation it accepted. However, as set out above, Dr. Lows opinion, one that
    the jury was entitled to accept and that it did accept, provided an evidentiary
    basis for the jurys finding:  because Nurse Burhanpurkar did not monitor the
    FHR, any signs of distress were not recorded or acted upon which could have
    accumulated and most likely contributed to Adam Goodwins brain injury.

[71]

As
    this court did in
Gutbir
, I would reject the appellants submission
    that in order for causation to be established, evidence was required as to the
    exact timing of Adams irregular foetal heart beat. Here, upon accepting Dr.
    Lows theory of causation and his evidence that concentrated the timing of the
    hypoxic episodes to when Ms. Goodwin was in labour, the jury could reasonably
    infer that during the first half of Ms. Goodwins labour: from 5:00 p.m. to
    7:00 p.m., when Nurse Burhanpurkar was in charge of her care, Adam experienced an
    episode or several episodes of foetal hypoxia.

[72]

This
    takes me back to the words of the Supreme Court of Canada in
Clements
that causation evidence should be approached in a robust and pragmatic fashion,
    having regard to the nature of the factual issues underlying causation and the
    kind of evidence the parties are able to adduce. A review of the evidence of
    both Dr. Marrin and Dr. Low makes it clear that the factual issues underlying
    causation in this case are particularly complex. In addition, Dr. Olupona was
    not able to adduce the clinical evidence that may have provided direct evidence
    of causation.  This is because due to Nurse Burhanpurkars own negligence, the
    FHRs, reliable information about Adams welfare while Ms. Goodwin was in labour,
    was not available.

[73]

Accepting
    the appellants argument would effectively immunize nurses in similar
    circumstances from liability, despite an acknowledged departure from the
    standard of care: c.f.
Edige
r
, at para. 44. This would mean
    that where intermittent foetal hypoxia is the theory of causation, the nurses
    own negligence in failing to monitor the foetal heart rate would render it
    virtually impossible for the nurse to be held liable.


[74]

Nurse
    Burhanpurkar and the hospital should not be allowed to hide behind a lack of
    evidence brought about by their own negligence, in the face of expert evidence
    supporting Dr. Oluponas position.

[75]

In
    my view, there was evidence capable of supporting the jurys findings of negligence
    and causation - that on a balance of probabilities but for Nurse Burhanpurkars
    failure to properly monitor the FHRs, for which both the nurse and the hospital
    bear a degree of responsibility, it was likely that Adams injury could have
    been avoided.

c.

Were the jurys other findings unreasonable?

[76]

The evidence was replete with areas
    where it could be said that Nurse Burhanpurkar breached the standard of care of
    a nurse in her situation.  Generally, Nurse Burhanpurkar displayed a persistent
    lack of attention to Ms. Goodwin and lack of response to the progress of her
    labour. She
failed to administer an epidural in accordance with Dr.
    Oluponas order. She failed to prepare a plan of care and maintain proper
    records.
She did not move
Ms. Goodwin
from the triage area (holding and assessment) to the
    labour and delivery birthing room, as she should have done so that Ms. Goodwin
    would have received the attention she needed.

[77]

However,
    given my conclusion on the issue of FHR monitoring and causation, it is
    unnecessary to decide whether Nurse Burhanpurkars other breaches of the
    standard of care were also capable of grounding the causation analysis.

d.

Conclusion on unreasonable verdict

[78]

Since
    there was a sufficient evidentiary basis for the jurys conclusions, I would
    not give effect to the argument that the verdicts were unreasonable.

2)

The Jury charge

[79]

As
    set out by this court in
Pereira v. Hamilton Township Farmers Mutual Fire
    Insurance Co.
(2006), 209 O.A.C. 127 (C.A.), at para. 51, an appellate
    court reviewing a trial judges charge will not hold the instructions to a
    standard of perfection. Instead, the focus should be on whether the jury would,
    having regard to the charge in its entirety, have properly understood the law.

[80]

Further,
    not all errors necessitate a new trial. The appellant must establish that the
    error produced some substantial wrong or miscarriage of justice:
Courts
    of Justice Act
, R.S.O. 990, c. C.43, s. 134(6). See also
Landolfi v.
    Fargione
(2006), 79 O.R. (3d) 767, at para. 121;
Pereira
, at
    paras. 72-76.

[81]

I
    also note that a failure by counsel to object to a jury charge in a civil
    case, while not dispositive, will tell strongly against an appellants request
    for a new trial based on alleged flaws in the jury charge:
Kerr v. Loblaws
    Inc.
, 2007 ONCA 371, 224 O.A.C. 56, at para. 32.

[82]

The
    appellants challenge the jury charge in three respects.

a.

Improper instructions
    regarding the legal test for causation

[83]

The
    appellants submit that the trial judge failed to explain to the jury the but
    for test and therefore failed to properly set out the law regarding causation.

[84]

The
    proper test for causation, set out in
Clements
, at para. 8, is the
    but for test: The plaintiff must show on a balance of probabilities that
    but for the defendants negligent act, the injury would not have occurred.  It
    is clear that the trial judge was well aware of the test and properly
    instructed the jury on it. In his charge the trial judge explicitly set out and
    repeatedly reminded the jury of the but for test. For example, the trial
    judge stated:

The law requires that if the physician did not perform medical
    services within the standard of care for an obstetrician, it must be proven on
    a balance of probabilities that the injuries to Adam Goodwin would not have
    occurred
but for
the action or lack of actions by Doctor Olupona [Emphasis
    added.]

[85]

This
    type of wording was used every time the trial judge instructed the jury with
    respect to its consideration of whether a causal connection had been made out in
    relation to each defendant. This wording was also incorporated into the
    questions the jury was required to answer. Furthermore, when giving his
    instruction on the principle of proximate cause, the trial judge clearly used
    language tantamount to but for: [t]he proximate cause of an injury is that
    cause which produces the injury,
and
without which
the result would not have happened

    (emphasis added).

[86]

In
    my view, therefore, the trial judge did, contrary to the appellants position, properly
    instruct the jury on the but for test.

[87]

I
    would therefore not give effect to this ground of appeal.

b.

Omission
    of material facts in the charge

[88]

The
    appellants also submit that the trial judge failed to reference certain facts
    in his charge to the jury and that this failure amounted to a miscarriage of
    justice. The appellants contend that the following facts, material to the
    jurys consideration of the issues, were omitted from the charge:

a)

Ms. Goodwins
    pregnancy was  high risk;

b)

Dr. Olupona was the
    physician in charge of the delivery of Ms. Goodwins twins;

c)

when a foetus is in breech,
    there are increased risks associated with its delivery;

d)

Dr. Oluponas order
    for the epidural PRN was for Ms. Goodwin to receive the epidural as needed or
    for pain;

e)

although Dr. Brown
    stated that if Dr. Olupona called the hospital, there was nothing for him to
    do, Dr. Olupona did not call the hospital to check on Ms. Goodwin;

f)

Nurse
    MacPhail, the respondents nursing expert, only ever provided nursing care in a
    level III hospital, and not in a level II hospital;

g)

at the time of Ms.
    Goodwins 4:30 p.m. ultrasound, Dr. Olupona did not inform her that Twin B was
    breech; and

h)

in her testimony on
    the nursing standard of care, Ms. MacPhail thought there was a mandatory
    requirement for FHR monitoring after 5:00 p.m., but elsewhere in her testimony
    she indicated that there was a range of acceptable practice for monitoring in
    the 5:00 p.m. timeframe.

[89]

I
    note that the jury instructions do not have to include reference to all of the
    facts and evidence: see
Landolfi
, at para. 120. On my review of the
    charge as a whole, the bulk of the facts upon which the appellants rely in this
    aspect of their appeal were either explicitly or implicitly addressed. The
    remainder were rejected by the trial judge in pre-charge discussions for reasons
    that I would not interfere with.

[90]

Moreover,
    I am not persuaded that any of the facts allegedly omitted were so material
    that their omission resulted in a substantial wrong or miscarriage of justice.

[91]

I
    would therefore reject this argument.

c.

Omission in the charge of the standard of care for nurses and the
    hospital

[92]

The
    appellants submit that the jury charge did not sufficiently outline the
    standard of care applicable to a nurse and hospitals.

[93]

I
    have already dealt with an aspect of this argument in addressing the hospitals
    argument that no evidence was adduced on a hospitals standard of care. To
    repeat, the jury was entitled to determine the hospitals standard of care in
    the absence of expert evidence. I would add the following to respond to this
    ground of appeal.

[94]

A
    further difficulty I have with the appellants submission is that it is
    contrary to the position their trial counsel took in pre-charge discussions.
    Dr. Oluponas trial counsel expressed concern about focusing on the issue of
    Dr. Oluponas standard of care, as opposed to that of the nurses or the
    hospital. The appellants trial counsel disagreed, stating:

Your Honour, there are as it relates to the nurses at Orillia
    Soldiers Memorial  there are probably four to five paragraphs in your standard
    of care section that talks about that.

And first of all your general  the first general paragraph
    about standard of care generally and how it applies to physicians, you then
    confirm that the general principles are also with respect to the nurses. But I
    have counted  four specific paragraphs on either the nurses and/or Orillia
    Soldiers Memorial  But I dont have the same view my friend has in that
    regard. And I dont know what she is suggesting is missing with respect to it.

I think its clear when you read that that the jury will have
    to consider the standard of care of not only each of the physicians[,] each of
    the nurses, and the Orillia Soldiers Memorial Hospital not only in its
    capacity as being vicariously liable but also in its capacity as providing
    training and/or resources. So Im not sure what is missing.

[95]

It
    is trite law that in a civil jury trial, the failure to object will be given
    considerable weight:
Brisco Estate v. Canadian Premier Life Insurance Co.
,
    2012 ONCA 854, 113 O.R. (3d) 161), at para. 70. The appellants trial counsel
    not only failed to object to the charge on this basis, but also actively opposed
    the inclusion of more detail about the standard of care applicable to the
    nurses and the hospital  perhaps in an attempt to encourage the jury to
    concentrate more on Dr. Olupona than on the appellants. In my view, the
    appellants should not be entitled to resile from that position now.

[96]

In
    any case, I am not persuaded that the charge was deficient in terms of
    providing the jury with assistance concerning the standard of care expected of
    the appellants. I refer to the following passage in the charge:

Nurses and a hospital also have duties towards patients to
    exercise the degree of care in all they do for a patient which could be
    reasonably expect[ed] of a normal prudent nurse with the same professional
    qualifications and training as Nurse Burhanpurkar and Nurse Thibedeau. The
    Orillia Soldiers Memorial Hospital is a Level II hospital, and it has a duty to
    its patients to provide the degree of care for a patient that could be
    reasonably expected of a Level II hospital when a woman attends for the
    delivery of twin babies.

[97]

Further,
    after detailing the standard of care for a physician, the trial judge indicated
    that the same concept of duty of care and meeting the standard of care applies
    for [the nurses and the hospital] in their positions as registered nurses and a
    Level II hospital. It would have been unnecessary to repeat the exact same
    instruction twice, substituting the nurses and hospitals names for that of
    the physician.

[98]

One
    can reasonably assume that the jury understood the trial judges instructions.
    The jury, one that clearly took its job seriously, did not ask for any
    additional assistance on any of these issues.

[99]

I
    would not give effect to the argument that the trial judge committed reversible
    error in any aspect of his thorough instructions to the jury.

E.

C
ONCLUSION AND DISPOSITION

[100]

In my opinion,
    based upon the proper instructions the trial judge provided, the jury was able
    to appreciate its duty. The members of the jury worked hard - participating in
    a long trial and tenaciously deliberating for eight days. At the end of the
    trial, the jury acted in accordance with its duty and rendered a verdict that was
    open to it on the evidence. The verdict is entitled to deference.

[101]

I would
    therefore dismiss the appeal.

[102]

The respondents
    are entitled to their costs, which, based on the agreement of counsel, are fixed
    in the amount of $40,000, including disbursements and applicable taxes.

Released:

APR 25 2013                                    Gloria
    Epstein J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.





[1]
Although Nurse Thibedeau is listed as an appellant in this appeal, neither side
    contests the jurys conclusion as to her liability. Consequently, in referring
    to appellants I mean only Nurse Burhanpurkar and the hospital.


