Ontario Court of Appeal Awards Family of Girl with Intrauterine Growth Restriction Over $14 million, Upholding the Long-Standing Principle of Respecting Jury Verdicts.


Mom was in her late thirties and became pregnant with her second child, a girl.

Mom presented to the labour and delivery room at 6:25 AM and reported vaginal bleeding. Dr. H indicated there were decreased fetal movements and that the fetal heart rate monitoring showed spontaneous decelerations and non-reassuring signs. A decision for a crash caesarean section was made at 06:50 hours. The baby was born at 07:07 hours and was covered with thick meconium (the earliest stool of an infant).

The hospital recorded that the umbilical cord was around the body and neck at the time of delivery. Dr. P indicated that the umbilical cord entanglement around the fetal trunk exposed the cord to compression against the lower uterine segment, and likely caused compression of the umbilical vein and obstruction of the umbilical venous blood flow intermittently.

Dr. P further indicated that it was likely that the infant was born with significant hypoxia ischemia encephalopathy (a type of brain dysfunction that occurs when the brain doesn’t receive enough oxygen or blood flow for a period of time).

As a result, baby was diagnosed with a severe epileptic disorder and hypotonic cerebral palsy (a type of cerebral palsy caused by damage to the cerebellum of the brain during childbirth), resulting in severe developmental delay.

At 36+ weeks, mom’s obstetrician, Dr. S, ordered an ultrasound which indicated Intrauterine growth restriction, or IUGR (a condition where the fetus does not grow as expected). Despite this adverse indication, mom was sent home and no further biophysical profiles or ultrasounds were performed.

By not ensuring that mom received at least weekly biophysical profiles, Dr. S failed to meet the standard of care in his monitoring of the diagnosed IUGR. Furthermore, Dr. S made no effort to change the delivery date for mom’s delivery date despite being fully aware that the fetus was not only growing inappropriately, but that the situation was deteriorating with time.

By failing to affect delivery at 37 weeks in a deteriorating situation, Dr. S did not meet the standard of care of an obstetrician. Had Dr. S maintained the standard of care in this case, the fetus would not have been born compromised.

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 baby’s disabilities. Despite the jury’s verdict, the trial judge ordered a new trial and refused to enter judgment in accordance with the verdict on the grounds that the particulars of causation given by the jury were insufficient and failed to explain the physiological mechanism of the injury.

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 Ontario Court of Appeal, 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 substituted judgment in favour of the plaintiffs in the sum of over $14 million.

The Ontario Court of Appeal confirmed that the analysis of jury answers must begin with the presumption that juries understand and properly apply the instructions provided by trial judges, and that “It would be wrong to assume that juries might disregard the law and instructions; this line of thinking could seriously undermine the entire jury system.”

This decision reaffirmed several principles, namely, that trial judges need to respect jury verdicts, that jury verdicts are entitled to a fair and liberal interpretation, that jury answers should be given the fullest possible effect and supported by any reasonable construction, and that jury answers should be taken “at face value” and interpreted “in a reasonable way.”

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