Case Summaries: KY v Bahler, 2023 ABKB 280

Associated Lawyers: Joe Miller, KC, Shelagh McGregor, Iman Jomha, Ian Miller

KZ and KD, twin infants born with catastrophic brain injuries after they developed Twin to Twin Transfusion Syndrome (TTTS) in utero, brought an action against multiple defendants by their litigation representative, their mother KY. The action was successful against the Defendant family physician, Dr. Bahler.

KY became pregnant in March 2009. The pregnancy was initially managed by Dr. Bahler, a family physician. Dr. Bahler, ordered the first pregnancy ultrasound on July 14, 2009. This ultrasound was performed on August 4, 2009, at 22 weeks 5 days gestation, and was reported to show a monochorionic diamniotic twin pregnancy. KY saw Dr. Bahler on August 11, 2009 and Dr. Bahler documented that KY had a twin pregnancy requiring referral to an obstetrician. Dr. Bahler started the referral letter that day, but for an unknown reason the referral was never sent.

Monochorionic diamniotic twin pregnancies are at risk for the development of TTTS. In these pregnancies blood vessels may develop between the placental structures of the twins. In some of these pregnancies there is uneven exchange of blood flow across these vessels resulting in one twin (the donor) losing blood and the other twin (the recipient) gaining blood (TTTS). There are two risks of TTTS: the imbalance of blood flow can result in permanent brain injuries to each baby and TTTS puts the pregnancy at risk for preterm delivery, which can also cause brain injury. Severe cases of TTTS can be diagnosed with ultrasound. TTTS is a progressive condition that can be treated with a laser procedure.

KY called Dr. Bahler’s office multiple times and was told the referral was on the two do list. On September 3, 2009 KY attended the Red Deer Regional Hospital complaining of cramping, low backache, and low abdominal pain that had increased in intensity since 22:00 on September 2nd. She reported that she had experienced discomfort since August 31st. She was seen by an obstetrician who suspected TTTS with possible pre-term labour.

KY was transferred to the Foothills medical center and diagnosed with severe TTTS. She was transferred to Toronto for consideration of laser treatment, but by the time she arrived, she was already in labour and so it was determined the twins would be delivered. Both twins were born with brain injuries.

Justice Renke found that the twins’ brain injuries were caused by hypoxia-ischemia which could have been the result of TTTS, complications of prematurity, or some combination of the two.  He held that the brain injuries were more likely than not caused by prematurity alone; however, the twins would not have been born prematurely, or suffered their brain injuries, if the TTTS had been diagnosed and treated at an earlier time.

Justice Renke found that Dr. Bahler breached the standard of care by failing to complete the referral to the obstetrician on August 11, 2009, and that, had the referral been made, the obstetrician would have ordered biweekly ultrasound testing to monitor the pregnancy for the development of TTTS. He found that this biweekly testing would have identified the developing TTTS and that KY would have received laser treatment. Finally, he found that the laser treatment would have extended the pregnancy to a gestational age at which the twins would not have suffered their brain injuries.

Justice Renke assessed extensive cost of future care damage including the cost of 24-hour care for KD commencing at age 25 and 24-hour care for KZ commencing at age 18.