Ontario's top court awards almost $15 million in case involving difficult birth

The Court of Appeal for Ontario has awarded $14.9 million in favour of the plaintiffs in a case where the jury found that the defendants breached the standard of care required of physicians looking after pregnant patients.

In Cheung v. Samra, 2022 ONCA 195, a fetus was diagnosed with intrauterine growth restriction at the 35th week of the pregnancy. This condition – which puts babies at risk of serious complications such as asphyxia, abnormal fetal heart rate, cerebral palsy and developmental delay – worsened.

In April 2006, the mother was sent home from the hospital despite increasingly worrying test results. She returned with vaginal bleeding the next day. An emergency C-section occurred since the fetus’s heart rate showed that she was in distress.

The baby was pale, blue and limp at birth. For 28 minutes, she had almost no heartbeat, and for 30 minutes, she was not breathing. Chest compressions, intubation, ventilation and the administration of drugs for cardiac arrest eventually assisted in resuscitating her.

In May 2006, the baby was discharged from the hospital to feed by breast and by bottle. In July 2006, she suffered a seizure and returned to the hospital, at which point she could no longer feed independently or control her head.

Currently, the minor plaintiff, who has severe brain damage and a diagnosis of hypotonic cerebral palsy and developmental delay, requires help with all activities. She cannot walk, talk or eat on her own.

A jury found that the defendant physicians breached the standard of care required of doctors looking after pregnant patients by failing to advance the delivery to an earlier date, causing the minor plaintiff’s disabilities.

The trial judge of the Superior Court of Justice required a new trial. While she concluded that there was evidence capable of supporting the jury’s decisions, she refused to enter judgment according to the verdict because the particulars of causation that the jury gave were insufficient and failed to explain the injury’s physiological mechanism.

The majority of the Divisional Court upheld the decision to order a new trial. The dissenting judge said that while the jury’s answers to the question on causation were conclusory, they were not inconsistent with the verdict.

The Court of Appeal for Ontario allowed the appeal, set aside the trial judge’s order requiring a new trial and granted judgment to the plaintiffs in the agreed sum of $14.9 million.

First, the trial judge erroneously refused to give effect to the jury verdict, the appellate court said. The jury made the two essential findings for the defendant physicians to be liable in negligence: first, the defendants failed to meet the standard of care; and second, this failure caused the injuries on a balance of probabilities.

The appellate court added that the jury, which must have understood that their answers should be brief, gave answers that possibly reflected a bottom-line consensus that they achieved through various paths.

Second, the appellate court said there was no basis to set aside the jury verdict. The jury did not get confused regarding the received instructions, did not proceed on any erroneous premise and did not give answers tainted by doubt or ambiguity.

The appellate court agreed with the dissenting judge’s conclusion that the jury’s answers relating to causation were consistent with the verdict and showed that the jury accepted the plaintiffs’ theory and rejected the defence theory.