First "standard of care", then "causation": Ontario appeal court orders new trial in medical malpractice case

Today’s decision by the Court of Appeal for Ontario in Randall v. Lakeridge Health Oshawa, 2010 ONCA 537 confirms the judicial mode of analysis in determining the issues of standard of care and causation. Fortunately, for the plaintiffs, the trial judge’s inverted legal analysis resulted in the ordering of a new trial.
The plaintiff, Derrick Randall, a party under disability,  was born by emergency Caesarean section on February 27, 1991, following18 hours of induced labour.  Prior to birth, he suffered oxygen deprivation resulting in brain damage and  severe disabilities. The Randall family sued the hospital and the doctors and nurses responsible for his care at birth.  Following a 47 day trial, the trial judge dismissed the action, finding there was no negligence.  
 
The plaintiffs appealed, arguing that the standard of care required the nurses to notify a physician that there had been an arrest of labour at 2:40 a.m. on February 27.   Had the nurses advised the physicians of the arrest of labour, the baby would have been born by non-emergency C-section prior to his suffering the oxygen deprivation.  
 
The Court of Appeal for Ontario agreed and ordered a new trial restricted to the issue of liability. Writing for the unanimous panel ,Juriansz, J.A. (Gillese and LaForme JJ.A. concurring) held that the trial judge’s mode of analysis was flawed and perhaps as a result, the trial judge’s reasons were insufficient to justify and explain to the appellants why their action was dismissed and inadequate to allow the appellate court to properly consider the appeal.
The Court of Appeal held:
[33]          The appellants submit the trial judge erred in law in the way he treated the standard of care and causation.  I agree.
[34]          The trial judge dealt with causation first and with the duty of care and standard of care afterwards.  His conclusion on causation was that negligent acts, if there were any, did not cause the harm suffered.  He reasoned that since the fetal oxygen deprivation occurred shortly before Derrick was born and its cause could not be identified, whatever happened earlier in his mother’s prolonged labour could not be responsible for the damage.  Having found that the respondents did not cause the damage, he was able to conclude that the nurses, for example, met the “overall” standard of care despite recognizing the evidence that they had failed to meet the standard of care in particular instances.  In his analysis, it was unnecessary to deal with the particular failings in light of his conclusion on causation. 
[35]          In proceeding in this way the trial judge erred.  Findings of breaches of the standard of care should be made first, and factual causation analyzed later in light of those findings.  This is most clearly stated in Bafaro v. Dowd (2010), 260 O.A.C. 70 (C.A.), where Laskin J.A. stressed that the question whether the standard of care was breached should be decided before the question of factual causation.  While Bafaro was not available at the time of this decision, the analytic framework has previously been set out as Laskin J.A. notes at paras. 35-36:
[T]he question whether the standard of care was breached should be decided before the question of factual causation.  In other words, the issue of factual causation arises after the trier of fact has found that the defendant breached the standard of care.  That is evident from [Snell v. Farrell, [1990] 2 S.C.R. 311] itself, where Sopinka J.’s entire discussion of causation was predicated on an uncontested finding of negligence against the doctor. 
The distinction between standard of care and causation, and the necessity to determine the former before the latter, is also evident in the recent Supreme Court of Canada judgment on causation, Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333. 
[36]          Here, the appellants submit it was incumbent on the trial judge to make findings on the evidence of the respondents’ failures to meet the standard of care, and then to separately consider whether those failures, individually or cumulatively, caused or failed to prevent the fetal acute hypoxic ischemic insult.  Instead, the trial judge generally concluded that the nurses met their “overall” standard of care without discussing and making specific findings in regard to the appellants’ position. 

 …

[76]          The trial judge does not explain why he concluded it was still reasonable to adopt the “wait and see” approach after 27 hours of labour.  In the analysis above, I have concluded that there was sufficient evidence in the record to support the appellants’ position that there was an arrest of labour at 2:40 a.m., that the standard of care required the nurses to inform the doctors of that arrest of labour and required the doctors to call for a non-emergency C-section, and that the C-section would have been performed prior to 3:46 a.m. thus averting the damage to the fetus that occurred in the minutes before birth.  This was an evidentiary issue that the trial judge had a responsibility to grapple with and resolve as it may have affected the result.
[77]          It was incumbent upon the trial judge to relate the breaches of the standard of care to his conclusion that the respondents’ lack of actions did not cause or materially contribute to the injuries.  I would conclude that the trial judge’s reasons are inadequate to justify and explain the result, to indicate to the appellants why they lost, to provide a basis upon which this court can properly consider the grounds of appeal, and to satisfy the public that justice has been done. 

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