2012 Health Law Case Roundup

Health law cases in 2012 can be characterized by a number of significant cases addressing both the beginning and the end of life. Perhaps the most important case in 2012 is the court revisiting the prohibition on physician-assisted suicide being a violation of the Charter, which was unsuccessful when last raised before the Supreme Court of Canada in Rodriguez. The courts also explored in other cases the question of who can make a decision as to when life ends, where the patient is incapacitated. At the other end of the cycle of life, courts also addressed the scope of criminal law provisions relating to the treatment of babies dying, or mistaken as stillborn, during unassisted birthing.

Of course courts addressed the scope and limits of other important health-related rights as well, such as rights to know the identity of a sperm-donor parent or the HIV status of a sexual partner, to maintain confidentiality over one’s own health care information, to own donor sperm, to access medical marihuana, and to be free of discrimination relating to an addiction.

Finally, 2012 saw legal refinements relating to liability or compensation for negligently-provided health care services, including refinements to negligence law that will encompass health-care related claims.

Here we present, in no particular order, our selection of top health law cases in 2012.

1. Blanket prohibition on physician-assisted suicide is unconstitutional

Physician-assisted suicide is a criminal act under section 241(b) of the Criminal Code, but several plaintiffs challenged the legality of section 241(b), arguing it breaches the equality rights of those who cannot commit suicide without assistance, under section 15 of the Charter, and also breaches the plaintiffs’ right to life, liberty, and security of the person under s. 7 of the Charter.

The impugned provision was previously challenged, but ultimately upheld by the Supreme Court of Canada, in Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 51.  However, in this case, Madam Justice Smith found she was not bound by the Rodriguez decision, as it had not considered infringement on s.15 equality rights. She also noted the law respecting s.7 had evolved since 1993.

Justice Smith found that the law, which prevents those who cannot commit suicide without assistance from obtaining that assistance, creates a distinction based on disability. This distinction is discriminatory because it perpetuates a disadvantage.  Justice Smith further found that the law could not be justified under s.1 of the Charter. Additionally, Justice Smith found that denying assistance to those who cannot commit suicide without assistance violates their s. 7 right to life, liberty, and security of the person.  The risk of incarceration faced by those who assist a person in obtaining physician-assisted death also violates s. 7 of the Charter. The s. 7 deprivations were inconsistent with the principles of fundamental justice. As a remedy, Justice Smith found s. 241(b) to be invalid.

The decision has been appealed to the British Columbia Court of Appeal.  The appeal will take place from March 18-22, 2013, and will be webcast.

Carter v. Canada (Attorney General), 2012 BCSC 886

2. Court has jurisdiction to protect child by making end-of-life decision

Baby M. was in pediatric intensive care and suffering a persistent coma. Baby M was apprehended under the Child Youth and Family Enhancement Act, RSA 2000, c. C-12, and counsel for M. asked the court to exercise its discretion to find that escalation of treatment was not in M.’s best interests. M.’s physicians agreed her condition was irreversible, and recommended that no further life-sustaining medical intervention be provided to her.

The physicians’ recommendations were opposed by M.’s parents, who had been charged with aggravated assault and other offences relating to M’s injuries. M’s father stated that his religious beliefs and his love for his child prevented him from accepting the recommendation. But their jeopardy could be enhanced if life-extending treatment was withdrawn, and only palliative care was provided.

The Court of Queen’s Bench accepted physicians’ recommendations and ordered that M. be provided with palliative care only, and all other forms of life-extending treatment be withdrawn.

On appeal, the parents argued that the chambers judge lacked the jurisdiction to grant such an order, given that the withdrawal of care was not considered to be within the definition of “essential treatment” under the Child, Youth and Family Enhancement Act. The Court of Appeal declined to vary the order. The chambers judge was entitled to invoke her parens patriae jurisdiction, as is warranted in any case where the best interests of a child are engaged. The Court dismissed the parents’ request for a stay of proceedings pending an application for an appeal to the Supreme Court of Canada.

Alberta (Child Youth and Family Enhancement Act, Director), v. D.L., 2012 ABCA 275

3. Donor offspring legitimately excluded from legislation that allows adopted children to learn parental identity

The plaintiff was the adult child of a sperm donor. The plaintiff had approached the physician who conducted the artificial insemination of her mother, to obtain information about her biological father. This physician had retired and claimed that pursuant to the rules of the College of Physicians and Surgeons of BC, he had destroyed all record of the plaintiff’s biological father. As a result, the plaintiff brought a Charter challenge against the British Columbia government for permitting destruction of this information, thereby depriving her of basic information necessary for her physical and psychological health. She also alleged her equality rights had been infringed by the province in its failure to enact legislation allowing the children of anonymous sperm donors to learn the identity of their biological parent, while legislation exists to allow adopted children to access such information.

The trial judge found that various provisions of the Adoption Act, RSBC 1996 ch 5, violated the plaintiff’s s. 15 Charter rights, as they provided adopted children with rights, but failed to extend these rights to donor offspring. The trial judge dismissed the claim for positive rights under s. 7. British Columbia’s Attorney General appealed the decision, and Ms. Pratten cross-appealed, contending that the trial judge erred in not declaring positive rights under s. 7 of the Charter.

The Court of Appeal found the impugned provisions valid by virtue of s. 15(2) of the Charter, which allows for laws to violate equality rights where the law has an ameliorative object for the conditions of disadvantaged individuals or groups. The Court of Appeal also held that s. 7 of the Charter “does not guarantee a positive right to ‘know one’s past.’” (7)

The Court distinguished adoptees and donor offspring, noting the legislation sought to redress the barriers adoptees faced resulting from the change in their legal relationship with their biological parents. Since donor offspring never had a legal relationship with their biological parents, their exclusion from the scope of the legislation was justified. Furthermore, the Court cited the Supreme Court of Canada decision in Alberta v. Cunningham, 2011 SCC 37,  for the principle that when governments in Canada implement ameliorative legislation to assist a disadvantaged group, they have the ability to set priorities, and may use targeted programs to achieve specific goals relating to specific groups.  On this basis, the BC government could, without falling afoul of the Charter, address issues faced by adopted children without, at the same time, addressing parallel issues faced by offspring of artificial insemination.

On the issue of a positive right to know one’s biological origin under s. 7 of the Charter, the Court held the right to know your past is not of such fundamental importance that it is entitled to free-standing constitutional recognition, as such a right would have implications reaching well beyond the concerns of adoptees and donor offspring.

Pratten v. British Columbia (Attorney General), 2012 BCCA 480

4. In certain circumstances, substances generated by a body can be treated as property

The two parties, J.C.M. and A.N.A., purchased an anonymous donor’s sperm from a sperm bank in the United States in 1999.  During the course of their relationship, each gave birth to one child using assisted-insemination with the donated sperm. The couple subsequently separated and entered into a separation agreement. The separation agreement included a division of property and arrangement for custody and support of their two children, but did not contemplate what to do with the 13 remaining sperm straws from their purchase in 1999.  J.C.M. began a new spousal relationship with T.L. T.L. wished to use the sperm straws to conceive a child who would be biologically related to J.C.M.’s other children. J.C.M. offered to purchase what she considered A.N.A.’s half interest in the sperm, but A.N.A. preferred the sperm straws destroyed.  J.C.M. could not locate the sperm through other means, so she filed an application with the court for an order declaring the sperm straws to be her sole property.

The case turned on the issue of whether sperm could be property. The common law historically prohibited the ownership of bodily substances, but Russell J. reviewed the case law in favour of the common law prohibition being necessarily revisited as medical science advanced.

The trial judge found that A.N.A. would have no parental obligations towards any child conceived through the straws and accepted the claimant’s argument that this favoured treating the sperm as property.  Furthermore, Russell J. stated that “the court is ill equipped to handle moral and philosophical arguments.” Interestingly, in determining the sperm straws were property, Russell J. appeared to place weight on the fact that the sperm had been treated as property by everyone involved in the transaction.  The sperm was commoditized and as such, the court determined that the moral arguments regarding commoditizing the body were “too late.”  The court ordered that J.C.M. receive 7 sperm straws, that A.N.A. receive 6 straws, and that J.C.M. pay A.N.A. for the extra one-half straw she received.

J.C.M. v. A.N.A., 2012 BCSC 584

5. In certifying a class proceeding, an order cannot breach the confidentiality of significant proportion of people not members of the class

The BC Court of Appeal granted a group of physicians leave to appeal a court order requiring that they provide the names and contact information of patients who are potential members of a class in a class action. The class proceedings were taken on behalf of all people in Canada who developed facial granulomas after using a medical facial cosmetic product marketed in Canada under the name “Dermalive”.

The applicant doctors, who were non-parties to the action but subject to the court order, sought leave to appeal various grounds, including that the order required them to disclose confidential patient information of individuals who were not members of the class.  The evidence showed that approximately 11,000 syringes of Dermalive were distributed across Canada, but only approximately 5.5% of those receiving injections would have developed facial granulomas. Therefore, the vast majority of the patients whose contact information the court ordered produced were not members of the class.

Communications between physicians and patients are presumptively confidential and the confidentiality attaching to that information is for the patient to waive. The patients who were not likely class members were not given opportunity to make submissions to the chambers judge respecting their legitimate privacy issues at the time the court made the order. The Court of Appeal also noted the chambers judge did not fully consider whether there were other means of notifying the class members which, though perhaps less effective, would not breach the privacy rights of individuals outside the class.

Logan v. Dermatech, 2012 BCCA 399

6. Proving causal link between addiction and misconduct a sizeable hurdle in the professional regulatory setting

The decision involves two appellant nurses, disciplined by the College and Association of Registered Nurses of Alberta (“CARNA”) for stealing narcotics and falsifying related records.  Both nurses admitted to falsifying records and stealing narcotics, but argued their addictions amounted to a disability under the Alberta Human Rights Act, RSA 2000, c.A.- 25.5. The issue on appeal was whether CARNA had a duty to accommodate the disability, either by using an Alternative Complaints Resolution or an incapacity process under the Health Professions Act, RSA 2000, c.H.-7, instead of the standard discipline process.

The Court of Appeal, in a 2-1 majority decision, confirmed the reasonableness of the Hearing Tribunal’s and Appeals Committee’s conclusions of no discrimination. On the issue of prima facie discrimination, the majority found discipline was based on the nurses’ criminal conduct not their personal characteristics, and did not engage the personal dignity and characteristics of a group. The majority found the sanctions imposed were based on rehabilitation, and that this amounted to accommodation of the addiction, thus dismissing the nurses’ argument that accommodation requires alternative disciplinary proceedings. The appeals were dismissed.

In a strong dissent, Justice Berger held that, on the third requirement of adverse effect discrimination, the tribunals erred in asking if nurses not suffering from disabilities who steal from their employer are punished, instead of asking if the neutral performance standards have a disproportionately adverse impact on a nurse who suffers from a disability that causes her to steal narcotics.

An application for leave to appeal to the Supreme Court of Canada was filed November 16, 2012. The decision on the application is outstanding.

Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267

7. New test for fraud vitiating consent in the context of HIV non-disclosure

In companion cases, the Supreme Court of Canada had opportunity to revisit how the law should approach HIV non-disclosure in the context of sexual relations.

The Court was asked by the parties to revisit R v. Cuerrier, [1998] 2 S.C.R. 371, which established that a failure to advise a sexual partner of one’s HIV status may constitute fraud vitiating consent under s. 265(3)(c) of the Criminal CodeCuerrier was criticised as being uncertain, and either overextending or too-closely confining the criminal law. The Cuerrier test requires two elements: (1) a dishonest act; and (2) deprivation (denying the complainant knowledge that would have caused him or her to refuse sexual relations exposing him or her to a significant risk of serious bodily harm).

The Court held that while perhaps difficult to apply, the Cuerrier approach is valid in principle and should not be jettisoned. In an attempt to clarify Cuerrier, the Court held that a “significant risk of serious bodily harm” means a “realistic possibility of transmission of HIV” [84].  A realistic possibility depends on both the risk of transmission, and the degree of harm. If there is no realistic possibility of transmitting HIV, then failure to disclose will not constitute fraud vitiating consent to sexual relations. The Court held that a realistic possibility of transmission of HIV is negated if the accused’s viral load at the time of sexual relations was low, and condom protection was used [94]. If both elements are present, there is no requirement to disclose HIV status.

R v. Mabior, 2012 SCC 47; R v. D.C. 2012 SCC 48

8. Restricting those with legal access to medical marihuana to consumption in its dried form is unconstitutional

The limitation in the Medical Marihuana Access Regulations, SOR/2001-227 (the Regulation), to lawful possession of marijuana only in the form of dried cannabis was challenged as violating an authorized user’s s. 7 Charter rights. The Crown conceded the limitation on how to take authorized marijuana engages the authorized user’s s. 7 rights. The Crown argued, however, the restriction exists to prevent the diversion of medical marijuana from lawful to unlawful streams.

In dismissing the Crown’s argument, the court found that the restriction to dried marihuana did nothing to prevent diversion of the drug.  Further the court found that smoking the drug is more harmful than taking it orally or applying it topically. The restriction on how users could take marihuana was arbitrary, and not in accordance with principles of fundamental justice. The court ordered that the word “dried” be deleted everywhere it appears in the Regulation.

R v. Smith, 2012 BCSC 544

9. Once negligence found on a balance of probabilities, it becomes a certainty so no deduction is required for contingencies

A radiologist was found negligent in failing to identify cancerous lesions in the plaintiff’s CT scan. The defendant radiologist appealed on several grounds, but most notably it was argued that a future income loss award for death resulting from negligence should be discounted based on the contingency that the individual had at least a 30% chance of not surviving even without the defendant’s negligence.

At trial, the plaintiff’s expert had testified the probability of the plaintiff being cured but for the defendant’s negligence was greater than 50% and could be as high as 72% or 73%.  The jury awarded loss of future income at an amount that constituted 85% of the upper limit for the plaintiff’s potential future income set by his own expert. The radiologist’s counsel challenged this finding on appeal as unreasonable.

The Court of Appeal stated the appellant’s argument was based on flawed reasoning. The fact the jury had found that the radiologist’s negligence had caused the plaintiff’s losses on a balance of probabilities made this a certainty rather than a probability, and there was no principle that entitled the defendant to a deduction based on the evidence of probability underlying this finding of causation.

Beldycki Estate v. Jaipargas, 2012 ONCA 537

10. Attempts to mitigate loss need not be successful to be recoverable as damages

The plaintiff had consulted his family doctor about persistent indigestion. The doctor did a barium swallow test for imaging the plaintiff’s upper gastrointestinal tract but found nothing. He then diagnosed the plaintiff with gastroenteritis and further testing was not discussed. The plaintiff’s symptoms were not relieved, and testing at a later date revealed incurable stomach cancer. After the plaintiff’s chemotherapy was terminated in Alberta, he went to the US to obtain further treatment.

The trial judge found that while the plaintiff’s cancer could not be cured at the time he consulted his family doctor, prompt testing would have allowed for treatment that could have extended his life by six months.

The physician appealed the trial judge’s decision, claiming that Alberta’s Fatal Accidents Act does not allow compensation for shortening his life, and that the disbursements incurred by the plaintiff were not caused by the defendant’s negligence. Both arguments had not been raised at trial, and the former was dismissed on that basis. Respecting the second argument, the Court of Appeal noted that attempts of a plaintiff to mitigate their loss need not be successful to be recoverable as damages. The court further noted that the tests for whether mitigation attempts are reasonable are “famously generous,” that a plaintiff is entitled to weigh the costs and benefits of further treatment, within limits of reasonableness, and that the progress of cancer is notoriously uncertain.

Pannicia Estate v. Toal, 2012 ABCA 397

11. To date in Canada, the material contribution test is only available in circumstances with multiple negligent tortfeasors

The defendant was driving an overloaded motorcycle in wet weather. Unbeknownst to him, a nail had punctured his rear tire. The defendant accelerated to at least 20 kilometres an hour over the speed limit to pass a car. During this manoeuvre, the nail fell out of the tire and the defendant lost control of the bike, resulting in a crash. The plaintiff passenger suffered severe traumatic brain injury in the accident.

The trial judge found that the “but for” test for causation could not be made out due to the limitations of scientific reconstruction evidence, and found for the plaintiff through application of the material contribution test.  Chief Justice McLachlin, for a majority of the Supreme Court of Canada, found that the trial judge erred in two respects. First, the trial judge insisted on scientific reconstruction evidence as a necessary condition of finding “but for” causation. Second, the trial judge erred in applying the material contribution to risk test, as the special conditions that permit application of the material contribution approach were not present.

The majority summarized the state of law in Canada with respect to the “material contribution” test as being essentially limited to cases where it causation can be shown between the plaintiff’s damage and the negligence of more than one tortfeasor, but it is impossible to show that any individual tortfeasor’s negligence meets the “but for” test. The majority ordered a new trial, whereas the dissent felt there was no evidence on which the “but for” test could be satisfied, such that a new trial would be inappropriate.

Clements v. Clements, 2012 SCC 32

12. Certification of a class proceeding requires an identified common issue, a defined class, and appropriate representatives

A doctor was suspended by the College of Physicians and Surgeons of New Brunswick following a formal complaint from a hospital that had dismissed him as an employee.  After the doctor was dismissed, the hospital conducted a review of the doctor’s work, and found that of 23,080 specimens, 5,267 had changes of some nature made to the original pathology reports.

Plaintiffs, suing for personal injuries as a result of specimens analyzed for potential cancer, brought a motion for certification of the action as a class proceeding, and proposed to bring this action on behalf of every patient, including their estates, whose tissue samples underwent pathology testing by the doctor for potential cancer or potential cancer-related disease at the hospital.

In dismissing the motion, the judge found that the plaintiffs failed to meet all the requirements for certifying a class proceeding. First, the definition of the class proposed by the plaintiffs was unduly broad, and lacked an identified common issue that would avoid duplication of fact finding and legal analysis. Secondly, the court also found the plaintiffs’ proposed class action failed to satisfy the criteria of the “preferable procedure” as the issue of standard of care was paramount to the resolution of the dispute and could not have been determined by means of a class action. Thirdly, the court found that two out of the three representatives for the plaintiffs had not suffered any harm from the defendant hospital and the defendant doctor, and therefore were questionable as to whether they were appropriate representatives. The third representative, on the other hand, did have a prima facie cause of action against the defendant hospital and defendant doctor.

Gay v. New Brunswick, 2012 NBQB 88

13. An estate cannot sue for breach of Charter rights, nor can it sue for violation of privacy

In September 2008, Mr. Sinclair, an indigent, physically and cognitively disabled Aboriginal man, died in his wheelchair in a Winnipeg Hospital waiting room after having spent 34 hours there without his condition being treated.

Mr. Sinclair’s sister, Ms. Grant, commenced an action against the Winnipeg Regional Health Authority, the Government of Manitoba, and numerous individual defendants, both on her own behalf and as executrix of the estate of her brother. The Defendants brought motions to strike out various remaining portions of the claim, including allegations (a) that Mr. Sinclair’s Charter rights had been breached, (b) that Mr. Sinclair’s privacy had been violated, (c) that the Province had committed public nuisance, and (d) a claim for legal fees and disbursements related to the inquest resulting from Mr. Sinclair’s death.

The defendants’ motions were successful in part. Ms. Grant’s Charter claims were struck on the basis she lacked standing to pursue any Charter violations her deceased brother might have experienced, as these rights were of a personal nature that an estate could not pursue.

The court also dismissed the allegations of breach of privacy under Manitoba’s Privacy Act based on a similar rationale. The court found that if any privacy breach had occurred it was after Mr. Sinclair had passed away, so that any privacy violation would need to be against his estate, which could not qualify for protection under that Act as a person.

Respecting Ms. Grant’s allegations of public nuisance against Manitoba, the material facts in the claim related only to Sinclair. The statement of claim failed to outline any material facts supporting any risks endured generally by vulnerable Aboriginal persons in hospital emergency rooms beyond mere allegations. As there was no apparent case for the Province to meet, that aspect of the claim was also struck.

The claim for inquest fees and costs was, however, permitted to proceed. The Court noted Sinclair’s family had been involved in the inquest by necessity, rather than by choice. For this reason, it could not be regarded as plain and obvious that there was no reasonable cause of action against the defendants for that head of damages.

Grant v. Manitoba, 2012 MBQB 88

Cases to Watch for in 2013

The cases below were decided by superior and appellant courts prior to 2012, but represent important issues for health law.  All cases were appealed to and heard by the Supreme Court of Canada in 2012.  We are interested to see how the Court will resolve these complex issues. Here are our top cases to watch for in 2013.

14. Withdrawal of life-support and ensuing palliative care by physicians requires consent

Mr. Rasouli’s doctors determined that Mr. Rasouli is in a permanent vegetative state, and believe the best course of action is for him to be taken off life support, and provided with palliative care until he dies.  Mr. Rasouli’s wife, Ms. Salasel, and his litigation guardian under the Health Care Consent Act, S.O. 1996, c. 2 (the “Act”), does not believe Mr. Rasouli’s condition is irreversible.

Ms. Salasel applied to the Ontario Superior Court of Justice for an order restraining the doctors from changing the treatment plan without her consent, and an order requiring the appellants to refer their treatment proposal to the Consent and Capacity Board, should they continue to challenge Ms. Salasel’s authority.  The doctors cross-applied to the court for a declaration that Mr. Rasouli is in a permanent vegetative state, and for a declaration that they can lawfully withdraw life-sustaining treatment in favour of palliative care. Finding in favour of Ms. Salasel, the application judge found that withdrawal of life support constituted treatment under the Act, and thus required consent. The doctors appealed the decision.

The appellants argued that patients have a right to refuse treatment, but do not have a right to insist on treatment that a doctor regards as medically ineffective or inappropriate. The appellants argued that because in this case, the provision of life support is futile, it cannot be considered treatment at all. In dismissing the appeal, the Court of Appeal found it unnecessary to answer this question, as they held that withdrawal of life support is inseparable from palliative care, and that palliative care is treatment for which consent is required.

The decision was appealed to the Supreme Court of Canada.  The Appeal was heard on December 10, 2012, and the judgment is reserved.

Rasouli (Litigation guardian of) v. Sunnybrook Health Sciences Centre, 2011 ONCA 482

15. Supreme Court of Canada to consider whether baby that died before birth is a “child”

Ms. Levkovic, alone in her apartment, fell and delivered a baby, near or at term. She placed the baby in a bag and left it on her balcony. The baby was later discovered and Ms. Levkovic was charged pursuant to s. 243 of the Criminal Code, which makes an offence of disposing of the dead body of a child with intent to conceal the fact of the birth:

Concealing body of child

Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years (emphasis added).

At trial, Ms. Levkovic argued that s. 243 violated sections 15 and 7 of the Charter, on the basis that. s. 243 is overbroad and vague.  The judge found that the phrase “child died before, during or after birth”, was unconstitutionally vague, as there is no unambiguous meaning for the term “child” in the context of a death that occurred before birth.  The trial judge found the provision did not provide notice to ordinary persons of the scope and risk of criminal liability.  Thus the trial judge held the provision violated Ms. Levkovic’s s. 7 Charter rights, and struck “before” from the provision.

At the Ontario Court of Appeal, the Court held that vague laws offend two fundamental values in our legal system. First, they do not provide fair notice of prohibited conduct, and second, they do not provide clear standards for those entrusted with their enforcement. The Court of Appeal held that the requirement to interpret a provision, or the fact that some cases will land close to the line does not engage the vagueness doctrine. The Court of Appeal held that s. 243 is not void for vagueness in any respect.

The Supreme Court of Canada heard the appeal on October 10, 2012.

R v. Levkovic, 2010 ONCA 830

16. What steps must a woman take to determine whether she miscarried or had a stillborn child?

A woman had a precipitous birth in a bathroom at a Wal-Mart. She did not know she was pregnant, and the baby appeared dead on delivery.  She left the baby in the toilet. The baby was later discovered to be alive, and the woman was charged under s. 218 of the Criminal Code, for unlawfully abandoning a child.  The trial judge found the woman lacked the mens rea required under the provision, and though her actions were negligent, they were not criminal. The Crown appealed, arguing that the trial judge failed to apply a modified objective test.

The majority of Court of Appeal agreed the language in the relevant provisions of the Code required an objective test, and the trial judge erred in applying a subjective standard. Despite this finding, the Court of Appeal found the defence of mistake of fact, which is a complete defence, would have been made out if a modified objective test were applied. The appeal was dismissed.  In reaching the same conclusion, Richards J.A. found that the subjective test was appropriately applied.

The Supreme Court of Canada heard the appeal on October 11, 2012.

R v. A.D.H., 2011 SKCA 6

17. The “but for” test for causation requires support from fact

A baby was born severely brain damaged due to a lack of oxygen shortly before delivery after a failed mid-level rotational forceps delivery. After the failed forceps delivery, the doctor ordered a caesarean. The baby was born twenty minutes later. The parties agreed that the cord compression likely led to the injuries, but disagreed as to what caused it.

The trial judge found there could have been several causes of the cord compression. The trial judge concluded, however, that due to the close proximity in time between the attempted forceps procedure and the onset of fetal bradycardia, and due to the absence of another explanation for the injury, the plaintiff proved on a balance of probability the cord compression would not have occurred without the forceps attempt. The trial judge also found that if the defendant doctor had back-up available more quickly, most, if not all the baby’s injuries could have been avoided, and thus met the “but for” standard.  The trial judge further held that the doctor’s failure to obtain informed consent caused the harm, as if she found that if the mother had been advised of the risks, she would have chosen to delay the forceps procedure.

In allowing the appeal, the BC Court of Appeal noted that in medical malpractice cases, the Supreme Court of Canada decision in Snell v. Farrell, [1990] 2 S.C.R. 311, holds that a strict theory of causation applies. The Court of Appeal held that the trial judge’s finding that Dr. Johnston’s attempted forceps delivery caused the cord compression was not supported by fact, and her an inference of causation was improperly drawn, as it was contradicted by the evidence tendered. The Court of Appeal relied on undisputed medical evidence that fetal bradycardia would occur within seconds of cord compression, whereas the trial judge had held that bradycardia occurred “within at most one and two minutes” after the doctor attempted the forceps delivery. Due to this lapse in time, the Court of Appeal found that causation could not be made out. The Court of Appeal further held that there was no evidence led at trial regarding what delay could have been avoided if the surgical team was “immediately available”, or if the mother had provided her informed consent.

The Supreme Court of Canada heard the appeal on December 4, 2012.

Ediger v. Johnston, 2011 BCCA 253