DD v Wong Estate, 2019 ABQB 171

On March 11, 2019 the Honourable Mr. Justice W.N. Renke released his decision in DD v Wong Estate, 2019 ABQB 171. Weir Bowen lawyers Joseph Miller Q.C., Shelagh McGregor, and Ian Miller represented the Plaintiff LL, a growth-restricted infant who was born with a catastrophic brain injury. Damages were agreed upon prior to trial and the only issue in front of Justice Renke was liability. The Plaintiffs successfully established that both Defendant obstetricians breached the standard of care in several respects and that those breaches caused LL’s injuries.

The Plaintiffs argued that the Defendant obstetricians, Dr. Phiri and Dr. Wong, failed to meet the standard of care and comply with the doctrine of informed consent when attending upon LL’s mother, DD, throughout her pregnancy. They argued further that if LL had been delivered at the appropriate time, her injuries would have been avoided.

Justice Renke found that the Defendant obstetricians had a suspicion of Intrauterine Growth Restriction (IUGR), a condition which put the unborn infant at risk for serious complications. An ultrasound performed on February 10, 2003 failed to confirm or rule out IUGR. The infant was born on March 8, 2003 and suffered a hypoxic-ischemic brain injury.

A unique aspect to this case is that Dr. Phiri was away on vacation from February 11, 2003 to March 3, 2003. Dr. Phiri, who ordered the ultrasound, did not review the ultrasound report before leaving and did not review it upon his return. The evidence was that Dr. Wong handled Dr. Phiri’s patient load in his absence. Justice Renke reviewed the principles relating to proper handover of care and held that Dr. Phiri had an obligation to communicate the special circumstances surrounding DD’s pregnancy to Dr. Wong and failed to do so. He found that Dr. Phiri was required to highlight the importance of the ultrasound report to Dr. Wong and to ensure that it was reviewed an acted upon. Justice Renke found that the standard of care required that Dr. Phiri and Dr. Wong consult and decide on a game plan.

In his decision Justice Renke reaffirmed the “worst first” principle: a physician has an obligation to carry out the appropriate investigations to either confirm or eliminate the worst of the potential diagnoses. Justice Renke also reiterated the principle that the standard of care demands care consonant with the risk of harm. The February 10th ultrasound did not rule out growth restriction and left in place the reasonable suspicion that DD was growth restricted. The ultrasound also pointed to a new anomaly, polyhydramnios, which increased the concern. Because DD’s pregnancy had risk features, the standard of care required that it be more closely monitored than pregnancies without risk features.

Justice Renke held that the standard of care required the Defendants to exercise clinical judgement and take into account all of the evidence that was or should have been available. Given the risks of growth restriction and the “ominous” combination of suspicion of small size and polyhydramnios noted on ultrasound, the standard of care demanded action in the form of readily available monitoring options until growth restriction was confirmed or excluded.

Justice Renke also reviewed an obstetrician’s obligation to follow up on missed appointments. DD missed an appointment on February 18, 2003. Justice Renke found that Dr. Phiri and Dr. Wong, through their staff, had an obligation to follow up on this missed appointment and take steps to reschedule it, because physicians are better equipped than patients to know when an appointment is appropriate. Justice Renke found that this obligation was owed not only to DD but also to LL, who had no control over whether DD attended appointments.

In addition to breaches of the standard of care, Justice Renke found breaches of the standard of disclosure. He held that Dr. Phiri breached the standard of disclosure by failing to advise DD of the risks of her pregnancy, the severe consequences a growth restricted baby might suffer, and that a means of addressing the risks would be to induce labour as soon as possible after the March 3rd appointment. Dr. Wong also failed to disclose information about the risks of DD’s pregnancy, including the severe consequences a growth restricted baby might suffer, failed to inform DD that an additional ultrasound could provide useful information, and failed to inform her that a means of addressing the risks of growth restriction would be induction as soon as possible after 37 weeks gestation.

Justice Renke found that LL’s brain injury was caused by a hypoxic-ischemic event that occurred on March 7, 2003 and identified the relevant causation question to be whether LL would have been delivered prior to March 7th had the Defendants met the standard of care. This meant that assessing cause-in-fact required projecting an alternative chain of events. Justice Renke considered two projected chains of events.

Under the first projected chain of events Justice Renke found that if the standard of care had been met, an appointment would have been scheduled shortly after the missed appointment on February 18th. Had Dr. Wong met the standard of disclosure at this appointment, DD would have chosen an induction. The infant would have been delivered prior to March 7th and would not have sustained the brain injury. Similarly, had Dr. Phiri provided proper disclosure at the March 3rd appointment and recommended induction, DD would have chosen the induction and LL would have been delivered prior to March 7th thus avoiding her injuries.

Under the second projected chain of events Justice Renke found that a second ultrasound should have been conducted by February 25th or 26th. He found further that this ultrasound would have revealed persisting polyhydramnios and confirmed growth restriction and DD would have been induced immediately and thus LL would have avoided her brain injury.

Finally Justice Renke concluded that the hypoxic-ischemic event suffered by LL was precipitated by a velamentous cord insertion. Although LL’s velamentous cord insertion was not detectable on ultrasound, it was foreseeable. Dr. Phiri and Dr. Wong should have known there were grounds for reasonable suspicion of IUGR and that IUGR may be caused by placental complications including velamentous cord insertion. It was therefore a reasonable and not-far-fetched risk that LL was suffering from velamentous cord insertion. A velamentous cord is vulnerable to disruption during labour delivery resulting in decreased blood flow and oxygenation to the fetus. It was therefore reasonably foreseeable that LL’s umbilical cord would become disrupted during labour and delivery causing injury to LL and legal causation was established.

By: Iman Jomha