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Proving Medical Malpractice and Causation by Inferences
Unfortunately it happens all too often that patients in Nova Scotia, New Brunswick and PEI are injured by a medical error. Medical malpractice cases can often be difficult to prove because the medical/hospital records are not readily available due to the passage of time. An experienced medical malpractice lawyer can still achieve justice on behalf of an injured patient in spite of the destruction of records. An example of this can be seen in a recent case out of the Ontario Court of Appeal.
The facts in Gutbir v. University Health Network are tragic. In January of 1984, a pregnant mother was admitted to hospital in her 42nd week of pregnancy. At 7am the next morning she went into labour. The attending nurse came into the room every 30-40 minutes to listen to the foetal heart rate. The foetal heart rate gives nurses and doctors an assessment of the condition of the infant. The nurse permitted everything to proceed normally. There was no sense of urgency. The mother assumed that her baby was healthy.
Her daughter was born at 3:45 pm. She was blue, silent and in critical condition upon delivery. A sense of panic set into the room for the first time. A specialist was promptly called. The baby was intubated and given oxygen. She survived but her brain was permanently damaged.
After the infant stabilized and was released, the family moved to Israel. It would be 15 year later, when the infant had aged and the extent of her injuries were fully realized, that the family commenced a lawsuit. By 2001, the Hospital where the child was born had destroyed all records relating to the birth. Fortunately, some records from other facilities were still available.
The lawsuit alleged that the doctor and main nurse were negligent in failing to detect signs of foetal distress through the heart monitoring. It was further alleged that by failing to detect the in-utero suffocation, the doctor and nurse permitted labour to continue instead of prompting urgent delivery; had they met thestandard of care, and noticed the foetal distress, the brain injury could have been avoided. The doctor settled before trial. The hospital (who employed the nurse) did not.
Following a jury trial that lasted several weeks, the jury found in favour of the injured child. The records, having been destroyed, did not permit evidence on exactly what information was known by the nurse. However, the jury inferred from the evidence that the baby must have been in distress and that this would have been detectable by fetal heart monitoring. It agreed that the nurse must have been negligent for failing to see what was there to be seen: an infant in distress. The jury found that by failing to make this necessary observation, the baby stayed in the womb when she should have been promptly removed. The jury found that the failures of the nurse caused the brain injury.
The hospital appealed on the grounds that there was no evidence available to support these findings. Essentially, the hospital argued that because the records had been destroyed, the injured patient was unable to prove what information was available to the nurse and what the nurse may have done with that information.
The Court of Appeal carefully reviewed all of the evidence available to the jury at trial. Despite the lack of hospital records, the Court found that there was sufficient evidence to support the inferences of negligence and causation made by the jury. On the issue of causation, the Court stated:
 While there was no direct evidence of causation, there is evidence from which the jury could properly infer a causal connection. Dr. Carson testified that, if EFM had been used or IA had been done properly, the distress of the foetus would have been detected, detection would have prompted intervention, and intervention would likely have been beneficial in this case. The jury’s answer tracks Dr. Carson’s evidence which indicates that they accepted it. The evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic ischemic insult before injury results. The extent of the injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill establishes that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted.
 Further, given the evidence that the attending nurse fell below the standard of care with respect to foetal heart rate monitoring, and the jury’s rejection of the alternate theory that hypoglycaemia was a major contributor to Zmora’s brain damage (which is not contested on appeal), the nurse’s breach is the only reasonable explanation for the cause of Zmora’s brain injury.
 The appellant further submits that the jury only found that any negligence on its part was found by the jury to be a “lost chance” to prevent permanent brain injury as opposed to a finding on the balance of probabilities that the appellant caused or materially contributed to Zmora’s injuries. The appellant’s submission is based on the following sentence in the jury’s answer to question 2-b (i.e., how the attending nurse’s breach of the standard care caused or materially contributed to the injuries of Zmora): “[Detection of foetal heartbeat abnormalities] would have allowed an earlier intervention, (birth of the baby), which could have prevented permanent brain injury.” While this sentence taken in isolation can be read in the manner submitted by the appellant, when the jury’s answers to the questions are read as a whole and in conjunction with Dr. Carson’s evidence, we are satisfied the jury’s finding was based on a balance of probabilities.
 Indeed, the jury’s answer to the question on causation begins with, “On the balance of probabilities, Zmora’s brain injury was caused by prolonged partial hypoxic insult. This would have taken place one to three hours before birth.” The wording of the sentence relied on by the appellant reflects the jury’s understanding that the longer the negligent situation prevailed, the more likely it was that serious permanent brain injury would result.
 Finally, we reject the appellant’s submission that in order for causation to be established evidence as to exactly when irregular foetal heart beat began was required. Having regard to the evidence and the jury’s answers to the two questions, if, as required by the standard of care, EFM had been used, or IA done after a contraction for the required length of time and with the required frequency, it is likely that the irregularities in the foetal heartbeat would have been noticed at a stage when permanent brain injury could have been prevented. In other words, the injuries were preventable on a balance of probabilities.
Sometimes direct evidence is not available. This case in an excellent example of how inferences can support findings of negligence and causation even in cases where direct evidence is not available.