In 2006, at 36+ weeks gestation, RC had an ultrasound which indicated Intrauterine Growth Restriction (“IUGR”), a condition where the fetus does not grow as expected. Despite this adverse indication, RC was sent home and no further biophysical profiles or ultrasounds were performed.
Approximately one month later, RC presented to the labour and delivery room complaining of vaginal bleeding. Due to decreased fetal movement and a non-reassuring fetal heart rate, a decision for a crash C-section was made. The baby girl was born covered with thick meconium, the earliest stool of an infant, with the umbilical cord around the body and neck. The umbilical cord entanglement caused compression of the umbilical vein and intermittent obstruction of the blood flow to the baby’s brain.
As such, the baby girl suffered a hypoxic ischemic injury and was subsequently diagnosed with significant Hypoxia Ischemic Encephalopathy (“HIE”), a type of brain dysfunction that occurs when the brain doesn’t receive enough oxygen or blood flow for a sustained period of time. The long-term outcome was severe epileptic disorder, cerebral palsy, severe developmental delay, severe eating disorder requiring G tube meeting, and recurrent aspiration pneumonia.
By failing to ensure that RC received at least weekly biophysical profiles, physicians failed to meet the standard of care in the monitoring of the diagnosed IUGR. Further, physicians made no effort to change the delivery date for RC despite being fully aware that the fetus was not only growing inappropriately, but that the situation was deteriorating with time.
At trial, a jury concluded that the defendant physicians failed to meet the standard of care required of doctors looking after pregnant patients, and that this failure caused the baby’s disabilities.
Although the trial judge concluded that there was evidence capable of supporting the jury’s conclusions, she refused to enter judgment in accordance with the verdict on the ground that the jury provided insufficient particulars of causation and failed to explain the physiological mechanism of the injury. The trial judge ordered that the action proceed to a new trial.
Sommers Roth & Elmaleh appealed the ruling to the Divisional Court, which upheld the trial judge’s decision to order a new trial.
Sommers Roth & Elmaleh then appealed the decision of the Divisional Court to the Court of Appeal for Ontario, where it was ultimately held that the trial judge erred in refusing to give effect to the jury verdict. As such, the Court of Appeal set aside the trial judge’s order requiring a new trial and granted judgment to the plaintiffs in the sum of $14.9 million.
The defendant physicians disagreed with the decision of the Court of Appeal for Ontario and brought an application for leave to appeal to the Supreme Court of Canada. The Supreme Court of Canada dismissed the final appeal, and upheld the $14.9 million jury verdict from 2018 ensuring that justice was delivered to the family of the injured minor plaintiff.