BC Court of Appeal dismisses negligence claim against doctors accused of causing brain damage

The BC Court of Appeal has upheld the dismissal of a medical negligence claim against two family physicians, finding no palpable and overriding error in the trial judge's causation analysis.

The plaintiff, Kyrcee Hanson-Tasker, commenced a lawsuit against respondents Dr. Brian Ewart and Dr. Sheila Ewart, the family physicians charged with her care in the days after her birth. The plaintiff alleged that the negligence of the respondents caused her brain damage resulting from untreated and dangerously high levels of bilirubin in her blood.

The trial judge found that the respondents breached the standard of care but concluded that their negligence did not cause or contribute to Kyrcee's injuries. The plaintiff elevated the case to the BC Court of Appeal, challenging the judge's causation analysis, arguing errors in considering adverse inferences and misapprehending evidence material to the issue.

The appeal court noted that Kyrcee's case revolved around the failure to monitor her condition in the days following her birth and discharge from the hospital, leading to a lack of follow-up bilirubin testing. The trial judge, based on expert testimony, determined that Kyrcee's injuries were more likely caused by an unpredictable, sudden-onset oxidative hemolytic event occurring after her discharge.

The plaintiff contended that the judge did not consider whether an adverse inference of causation was appropriate in the face of causal uncertainty attributable to the respondents' negligence. The appeal court, however, found that the judge was aware of the availability of such an inference but deemed it unnecessary given the substantial body of expert evidence presented by both parties.

In its analysis, the appeal court emphasized the foundational principles of proof of causation in negligence actions. The court highlighted the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the defendant's negligent act. Ultimately, the court concluded that the trial judge's findings were well-grounded in the evidence, and his causation analysis aligned with the governing framework. The appeal court found that the judge's decision not to draw an adverse causal inference was reasonable due to the factual findings and expert testimony presented during the trial.

The plaintiff also argued that the judge "forgot, ignored or misconceived crucial evidence of causation." The plaintiff contended that the judge failed to consider the progression of jaundice, a crucial factor in determining the trajectory of bilirubin levels. According to the plaintiff, this alleged error led the judge to erroneously conclude that Kyrcee's brain injury was unpreventable.

The appeal court pointed out that while the plaintiff asserted that the judge accepted an account of Kyrcee's worsening jaundice, she did not fully engage with its implications in the causation analysis. The court found that the judge properly considered the evidence related to jaundice. The court emphasized that jaundice alone does not indicate elevated bilirubin levels requiring treatment.

The plaintiff further argued that the judge failed to distinguish between the condition requiring treatment and the resulting injury. The plaintiff asserted that this misapprehension led to the judge's conclusion that Kyrcee's brain injury could not have been prevented until it started occurring.

The court, in response, dismissed these claims, stating that the judge correctly analyzed the distinction between the condition requiring treatment and the resulting injury. The court emphasized that the judge's conclusions were based on the evidence presented and supported by the medical experts' testimony. Ultimately, the court upheld the judge's findings and affirmed the dismissal of the medical negligence claim.