Last week, the Supreme Court of Canada restored a $3.2 million award to the Ediger family of Chilliwack, B.C. In the ruling, the court concluded that William G. Johnston, an obstetrician, is liable for the birth injuries caused to Cassidy Alexis Ediger. The 7-0 court ruling restored a liability finding against Johnston that had been overturned by the B.C. Court of Appeal in 2011.
On January 23, 1998, Carolyn Ediger was induced in labour by her obstetrician and gynecologist William G. Johnston, after he determined that her pregnancy was high risk. Complications were encountered during the delivery, and Johnston attempted a "mid-level rotation forceps delivery" without adequately informing or warning Carolyn about the potential risks of the procedure. Cassidy’s heart rate slowed (a condition called ‘bradycardia’) and her brain was deprived of oxygen for a full 18 minutes before an anesthetist was able to attend and an emergency c-section was carried out. At trial, Johnston was found to have breached the standard of care expected of him in the circumstances (i.e. was negligent) on two counts: i) by failing to have surgical backup available prior to attempting the forceps procedure; and ii) by failing to obtain consent from Cassidy’s mother before commencing the forceps procedure. The finding on lack of informed consent was eerily similar to a tragic case decided in 2009 (upheld on appeal earlier this year) involving catastrophic injury to an infant sustained at birth (also as a result of an unsuccessful attempt at a forceps-assisted delivery).
Johnston successfully appealed to the B.C. Court of Appeal on the basis that it was not possible to prove causation (i.e. that the forceps attempt caused the obstruction of Cassidy’s umbilical cord which caused the slowed heart rate which led to her injuries and/or that his failure to arrange for "immediately available" surgical back-up caused Cassidy’s injuries). The legal test for causation requires the plaintiff to show on a balance of probabilities that "but for" the defendant’s negligent act, the injury would not have occurred.
The Supreme Court of Canada restored the trial judge’s finding that Johnston’s attempt to deliver by forceps was in such "close proximity" to the onset of Cassidy’s bradycardia as to support a finding of causation. Further, the Supreme Court found that Johnston erred by failing to ensure a backup surgical team was readily available to assist with a caesarean section delivery when it was clear that the forceps procedure failed. Had Johnston taken such a reasonable precaution (given the recognized risk of bradycardia with a forceps attempt), a faster delivery would have ensued and injury from bradycardia would likely have been prevented.
Cassidy is now 15 years old, suffers from permanent spastic quadriplegia and cerebral palsy, is non-verbal, tube-fed, confined to a wheelchair, and is fully dependent on her parents for every aspect of her daily care. Her life expectancy is 38 years.
Jennifer Hartman, guest blogger
During Hull on Estates Podcast #46, Ian and Suzana discuss the concept of causation and how it relates to estate matters.
The cases of Haag v. Marshall in the British Columbia Court of Appeal, Sykes v. Midland Bank  1 Q.B. 113 and Major v. Buchanan (1975), 9 O.R. (2nd) 491 at 514, 61 D.L.R. (3rd) 46 (H.C.) are also examined.