Crawford v. Penney et al, [2003] Carswell Ont 82, per: Power J.

Melissa Crawford was born on December 27, 1983 at Smith Falls Hospital. She sustained catastrophic injuries in the form of hypoxic ischemic encephalophy resulting from shoulder dystocia, the obvious cause of which was excessive birth weight caused by untreated diabetes in pregnancy. Melissa also suffered a right brachial plexis injury and a fractured right clavicle during the course of her delivery. Through her litigation guardian, Melissa sued the physicians who delivered her and the hospital.

The two general practitioners who performed the delivery and pre-natal care, Dr. Penny and Dr. Healey were found negligent in their administration of pregnancy of Melissa's mother and delivery of Melissa herself. Penny and Healey did not provide the appropriate standard of care expected of a normal, prudent, general practitioner practising obstetrics in 1983 in a small community which had quick and easy access to major medical centres and experts. They also did not recognize their own limitations, failed to account for the dangers of macracomia (large baby) and shoulder dystocia and the associated factors of maternal obesity, family history of large gestational infants and gestational diabetes or diabetes as it relates to the science of babies and complications in child birth that flow therefrom.

This case is factually complicated and is over 321 paragraphs in length. It cannot be fully digested here. However, three salient points are worthy of note.

(1) In respect of conflicting expert evidence regarding the standard of care in medical malpractice cases, the court addresses the concerns raised in Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 wherein the House of Lords stated:

“In the realm of diagnosis and treatment, there is ample scope for genuine differences of opinion and one man clearly is not negligent because his conclusion differs from that of other professional men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor, is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty if acting with ordinary care...”

In response to this point raised by the defendants, the court relied on the case of Tacknyk v. Lake of the Woods Clinic and Brown [1982] O.J. No. 170 (Ont. C.A.) which held:

“The standard of care is a matter for the court and not medical experts although their view will be taken into consideration in setting the appropriate standard.”

From this case and from the case of Dorion v. Beaupre and Bolduc, [1991] 1 S.C.R. 374 at 430-1 Power J. concludes:

“... indeed the appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence...There is no necessitated dismissal of medical negligence claims simply because honest and competent experts disagree over a doctor's diagnosis or treatment.”

(2) During the course of the trial, counsel for the defendant doctors took the position that a lower standard of care should be expected of general practitioners practising obstetrics outside of major urban localities. In respect to that proposition, the court replied:

“... a physician practising in a small town must be particularly vigilant to risk factors because of a lack of availability of immediate help. The need to refer patients to specialists, therefore, may be greater in a rural setting than in an urban setting. A rural physician practising his/her profession is under the same obligation as a physician with a similar practice in an urban setting to keep up with developments in areas of medicine pertinent to their practises.

Bearing in mind that in 1983, in Ontario, 50% of babies were delivered by family physicians, particularly in rural areas. It would be a sad comment indeed for the law to apply a lesser standard of care in some communities as opposed to others. This is not to say, however that all physicians possess the same ability and have access to the same resources. These physicians and localities must recognize the limitations and refer patients, where possible, to experts and to larger medical facilities.”

(3) The third important point is that the court awarded $80,000.00 in damages to each of Melissa's parents for loss of care, guidance and companionship.

Plaintiffs counsel: Richard Sommers Q.C.* and Robert Roth*, of Toronto, ON.