Guerineau v. Dr. Seger et al.

2001BCSC0291 Citation: Guerineau v. Dr. Seger et al. Date: 20010223 2001 BCSC 291 Docket: C982750 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: JESSE J. GUERINEAU, by his mother and guardian ad litem, LYDIE C. GUERINEAU PLAINTIFFs AND: DR. MARK R. SEGER, DR. SARA A. PEDERSEN and THE FRASER-BURRARD HOSPITAL SOCIETY as operators of the ROYAL COLUMBIAN HOSPITAL

DEFENDANTS

REASONS FOR JUDGMENT

OF THE

HONOURABLE MADAM JUSTICE BOYD Counsel for the Plaintiffs: N. Smith, Q.C. Counsel for Defendants: R.J. Harper and E.J.A. Stanger Dates and Place of Trial: Vancouver, BC January 15-19, 2001 January 22-26, 2001 And January 29-30, 2001 1.0 INTRODUCTION: [1] This is the infant plaintiff, Jesse J. Guerineau's claim for damages for injuries resulting from his asphyxiation when his mother, Lydie Guerineau, suffered a uterine rupture during labour. As a consequence, he was extruded into his mother's abdominal cavity and removed by way of emergency caesarean section on March 15, 1998. [2] The action was initially brought against both the mother's treating doctors as well as the Royal Columbian Hospital ("the Hospital") and the nurses who cared for her during the critical labouring period. The two defendant doctors, Drs. Seger and Pedersen, were called as adverse witnesses in the course of the plaintiff's case at trial. On the fourth day of trial, after their testimony was completed, the plaintiffs' counsel advised the Court he had instructions to consent to a dismissal of the claim against the defendant doctors, without costs against the doctors. Those instructions were based on counsel's understanding that no evidence would be called on behalf of the Hospital to suggest that at the critical time, when the nursing staff telephoned Dr. Seger, any information concerning the fetal heart

rate was relayed to him. A consent dismissal order was made at that time. [3] The essence of the plaintiffs' claim is that during the course of the mother's labour, the nursing staff ought to have recognized either that the mother was demonstrating the signs of a potential uterine rupture or, at the least, ought to have recognized that something unusual was occurring and thus contacted Dr. Seger, the family physician, or Dr. Pedersen, the obstetrician on call within the hospital. The hospital and nurses' position is that the various signs and symptoms relied on by the plaintiffs were consistent with a normal labouring patient or were not suggestive of possible uterine rupture. At most they say the nurses may have erred in the exercise of their clinical judgment, which error cannot found a claim in negligence. 2.0 BACKGROUND FACTS: [4] Mrs. Guerineau was born in France but moved to Canada as a child. As a young woman she returned to live in France where she met her husband, Jeremy Guerineau. While living in France, she became pregnant with their first child, Kelly. [5] When she was ten days overdue, she was induced and when she failed to progress in labour, the baby was delivered by way of caesarean section on May 27, 1992. At that time, the French physician reassured the Guerineaus he had performed the caesarean section in such a fashion that it would still be possible for Mrs.

Guerineau to attempt vaginal delivery in future pregnancies. (I should note here that while no Operative Report relating to that delivery was ever produced or available, Dr. Pedersen testified that in the course of the emergency caesarean section performed on March 16, 1998, she was able to confirm that there was indeed a lower transverse incision of the uterus, such that a vaginal delivery could indeed have been attempted as the French physician had advised.) [6] The couple eventually returned to Canada and Mrs. Guerineau became pregnant for the second time. She enjoyed a normal pregnancy. Her family physician, like the French physician, reassured her that she would be able to attempt a "natural" vaginal delivery-that is a V.B.A.C. (vaginal birth after caesarean). In the 39th week of pregnancy, her own family physician suffered a knee injury and she was referred to Dr. Seger. Although Mrs. Guerineau could not recall any of the doctors advising her of any risks associated with a VBAC delivery, and more particularly the risk of uterine rupture, I am satisfied that those risks were in fact raised by her family physicians. [7] In the latter phase of the pregnancy, Dr. Seger told Mrs. Guerineau that if she had not delivered by March 15th (when she would be 10 days overdue) she was to call him and arrange for admission to the Hospital to undergo induction of labour. [8] The due date

came and went and as planned, Mrs. Guerineau attended hospital at 1100 hrs on March 15, 1998. At Dr. Seger's request she was assessed by Dr. Sarah Pedersen, the attending obstetrician on call, to determine whether it would be appropriate to induce labour. At 1200 hrs, Dr. Pedersen examined the patient and confirmed that induction would be appropriate. A normal dose of Prostin, a prostoglandin gel used for the induction of labour, was inserted in the patient's vagina. During the two hours which followed, while the patient experienced some minor contractions, labour was not established. It is noteworthy that Mrs. Guerineau experienced no vaginal discomfort or burning. She was released from hospital with instructions to return once labour was established but in any case, no later than 1800 hrs. Mrs. Guerineau noted Dr. Pedersen's clear instruction that if she felt "any burning sensation " over the previous caesarean incision site, she should advise the nurses. [9] No progress was made in the intervening period and Mrs. Guerineau returned to the hospital, in the company of her husband, as instructed at 1800 hrs. At that time Dr. Pedersen performed a second vaginal examination of the patient. In her History and Progress note, she records finding the station of the presenting part, that is the baby's head, either at or one centimetre above the spines. She noted the cervix to be 1.5

cm long and 1-2 cm dilated. She inserted a second dose of the Prostin gel, this dose being half a regular dose. [10] Over the next five hours, Mrs. Guerineau remained in hospital with no significant progress in the labour. In the interim a number of family members arrived to visit-specifically her mother and her sister Virginie Olic, who had both just arrived home on a transatlantic flight from France. They arrived while Mrs. Guerineau was in the shower. Mrs. Olic clearly recalled assisting her sister from the shower, drying her off and helping her return to bed. The mother and sister left to return home. [11] At 1930 hours, Nurse Miranda Ha, the charge nurse, assigned Nurse Skidmore as Mrs. Guerineau's primary care nurse for the 12 hour shift to follow, ending at 0730 hours on March 16, 1998. Nurse Skidmore acknowledged that the oral nursing report she received at the outset of her shift clearly identified Mrs. Guerineau as a VBAC patient, one who was 10 days overdue and had had a regular dose of Prostin approximately 71/2 hours earlier. [12] In cross examination, both Nurse Skidmore and Nurse Ha (as well as Nurse McKay and Nurse Luk) acknowledged that a VBAC patient is one who carries the risk of uterine rupture, that uterine rupture is perhaps the most serious possible obstetrical complication and that uterine rupture may result in potentially catastrophic injury to both the

mother and the baby unless dealt with quickly. They both acknowledged the risks for a VBAC patient are further heightened when the pregnancy is overdue, since there is some possibility of placental insufficiency and thus the inability of the fetus to withstand the normal rigours of labour. They also acknowledged the risks for a VBAC patient are even further heightened where labour is induced using prostaglandins therapy, since the gel will sometimes stimulate stronger, more forceful contractions which in turn increase the risk of uterine rupture along the previous caesarean incision. [13] In effect, Mrs. Guerineau was a VBAC patient who faced risks on triple fronts. Remarkably, despite this presenting scenario, Ms. Ha saw fit to assign the case to a nurse who was, by any description, a neophyte labour and delivery nurse. While she could not recall her precise experience, Nurse Ha admitted knowing that Nurse Skidmore was "pretty new" to the Labour & Delivery Suite. While Ms. Skidmore had completed a two year nursing certificate program in 1977 or 1978, she had no clinical experience as a labour and delivery nurse prior to January 1998. Between January 1998 and March 15, 1998, she had had no more than 12 shifts of experience as a labour and delivery nurse. [14] In order to qualify to work in the Labour and Deliver Suite, the nurses at the Hospital were then required to have

completed a compressed nine month Low to Moderate Risk Labour Room Delivery course offered at the British Columbia Institute of Technology. The course requires attendance at a weekly class and the completion of a practicum. Nurse Skidmore attended that course which culminated in a practicum involving four 10 hour shifts caring for labouring patients under the supervision of another nurse in May and June 1997. Between the completion of the course in June 1997 and the commencement of her assignment to duty in the Labour and Delivery suite in January 1998, she had no other practical experience caring for labouring patients. [15] Nurse Ha explained that it was appropriate to assign both Nurse Skidmore and the even less experienced Nurse McKay (who was assigned to relieve her during a break from 0200 hrs to 0230 hrs.) to care for Ms. Guerineau since, according to hospital policy, VBAC patients are treated as "normal labouring patients". Accordingly, in Nurse Ha's view, both Nurse Skidmore and Nurse McKay had the requisite training and experience to handle the patient. Her conclusion, in my view, obviously ignored the additional attendant risks in this case. [16] I find that the prevailing hospital policy, in terms of characterizing VBAC patients as normal labouring patients, and the resulting assignment of a neophyte nurse to such a patient, created an atmosphere of risk in this

case. That risk was further exacerbated, in my view, by the overall structure of the nursing hierarchy within the Unit-one which lacked any clear identification of a primary nurse clinician or resource person within the unit. [17] Ms. Ha, explained that in her role as charge nurse that night she was responsible to assign nurses to care for particular patients, to organize the times when the various nurses would take their breaks, and finally to act as a "resource person" to other nurses on the Unit. However on being pressed to explain her role as a resource person, she explained that a charge nurse is not really one who is expected to be an experienced senior nurse, dispensing clinical advice to the primary treating nurses. Rather she explained that regardless of their experience, all nurses on the Unit were expected to "take turns" being the charge nurse. The charge nurse is essentially expected to understand and explain to other nurses the physical layout of the Unit, the location of equipment and medications, and any salient telephone numbers. She agreed that if the treating nurse who she had assigned to care for a patient was a less experienced nurse and had any question about patient care, she would be expected to come to her first. If she as the charge nurse could not answer her question, she would perhaps suggest she call the treating physician. If the treating nurse was

an even more experienced nurse, she would presumably not turn to the charge nurse as a resource. [18] In the final analysis, she explained that "according to our management, the primary nurse should be able to make her own decision." On re-examination, she demurred and explained that regardless of who is the charge nurse, all the nurses, both junior and senior, work together as a team to help each other in their treatment of patients. I take it that in this sense, the charge nurse's actual ability to act as a resource person is not relevant. [19] In any case, Mrs. Guerineau's father, his girlfriend and an uncle arrived to visit at approximately 2200 hrs. but were cleared out of the room to accommodate Dr. Pedersen's final visit of the night at 2305 hrs. She noted that the mother was in no apparent distress and that her contractions were occurring approximately 2-3 minutes apart. Since she made no record of the station of the presenting part, she is confident there was no change of station since her earlier examination at 1840 hrs. In her view there had only been a minimal change in the mother's condition since 1840 hrs. She formed the opinion the patient was in the early latent phase of labour. At this time, Nurse Skidmore checked the maternal vital signs and contraction pattern and noted nothing unusual. She auscultated the fetal heart. Being somewhat concerned there was some

suggestion of tachycardia, she applied the fetal heart monitor for a period but at Dr. Pedersen's instruction, she removed the fetal heart monitor. [20] Dr. Pedersen told Mrs. Guerineau that if nothing happened that night, she would "try something else" the next day. Both Mr. and Mrs. Guerineau testified that to that point, the labour was normal and in many ways, a replay of the previous delivery. [21] At 2350 hrs. Nurse Skidmore again checked the mother's vital signs and contractions. She noted, as the Guerineaus have confirmed, that at approximately this time, Mrs. Guerineau's contractions were becoming more uncomfortable. By 0015 hours, Mrs. Guerineau asked for pain medication. In an attempt to ensure that delivery was not imminent (which would prohibit the administration of a narcotic which might depress fetal respiration), Skidmore attempted to perform a vaginal examination of the patient but was unable to reach the cervix. Having noted that at 2305 hrs, Dr. Pedersen had asked the patient to place her hands beneath her hips to assist her in performing the internal examination, Skidmore concluded that the patient's cervix was likely tipped posteriorly, thus making it difficult for her, being limited by her short fingers, to reach the cervix. Although she could not reach and thus assess the cervix, she was satisfied that had delivery been imminent, the cervix would have been

tipped much more anteriorly. Accordingly she concluded it was appropriate to administer 100 milligrams of Demerol and 25 milligrams of Gravol at 0015 hrs. At this time she again auscultated the fetal heart and found it to be within a range of 145-150 beats per minute, well within normal limits. [22] At this point, she thought the patient might be progressing into a more active phase of labour. She left the room to speak to the charge nurse, Ms. Ha, and specifically to discuss the various options for pain management. According to her, Ms. Ha suggested she use Entonox, a mixture of nitrous oxide and oxygen, commonly known as "laughing gas", which a labouring patient inhales as a contraction begins until the mid point or the end of a contraction, usually with an accompanying relief of pain. Ms. Skidmore's recollection is that she instructed the patient in the use of Entonox and that the patient indeed found it "helpful". [23] Skidmore remained at the bedside with the patient. At approximately 0110 hours, she notes in the Nurses Notes that the patient "complained of burning in the vagina". At trial she recalled the patient complained of a "burning sensation". At this point she started the fetal monitor strip. The fetal monitor strip contained in the chart records the strip being attached and beginning operation at 0108 hours. Nurse Skidmore says she palpated the patient's abdomen

to assess the contractions and asked Mrs. Guerineau whether she was experiencing any pain over the old caesarean incision site. She says the patient denied any such pain and explained that her only pain was the burning pain in the vagina. She says there was no complaint of abdominal pain. While Mrs. Guerineau agrees that she complained of a "burning sensation" in the vagina, she insists that within a minute or so of making that complaint, she also complained of pain and pressure over the old caesarean scar incision. [24] So far as Skidmore was concerned, the patient was not exhibiting any of the classic signs of actual or threatening uterine rupture which she had been taught-that is, there was no abdominal rigidity, no continuous pain over the abdomen, no pain over the old caesarean incision site, no maternal hypotension or tachycardia and no sign of fetal distress. [25] Nevertheless, Nurse Skidmore was obviously perplexed and troubled by the patient's complaint so she left the room to consult with the charge nurse, Ms. Ha. On being advised of the patient's complaint of the burning sensation in vagina, Nurse Ha reassured Skidmore that the vaginal burning might simply be the reflection of an irritation of the vaginal tissue caused by the earlier insertion of the prostaglandin gel. [26] Nurse Skidmore returned to the patient's bedside and examined the fetal monitor strip. While

she believed the strip reflected some decreased variability of the fetal heart, she attributed that variability to the administration of the Demerol some 40 minutes earlier. She testified that in her view while there "may have been some early to variable decelerations" of the fetal heart, they were nevertheless not prolonged and mirrored the patient's contractions. She did not consider the decelerations to be signs of fetal distress. [27] Still, the patient was continuing to complain loudly of the burning sensation in the vagina so she returned to the nursing station and asked Nurse Ha to specifically attend and assess the patient. The vaginal irritation theory was clearly not sitting well in Nurse Skidmore's mind and she wanted the senior, experienced nurse to confirm that view by way of her own assessment. [28] According to Skidmore, Ha returned with her to the patient's room and conducted her own assessment of the patient. Skidmore says she examined the fetal monitor strip, palpated the patient's abdomen and asked whether she had pain over the abdomen or the incision site. She says the patient said she had no pain in those locations. She says that she then palpated the patient's bladder and asked her, Skidmore, when the patient had last voided her bladder. Skidmore says she could not recall and that at that point, the patient's husband interrupted and told them it had been

at least three hours since his wife had last voided. [29] At that point Nurse Ha formulated the nursing plan of action-namely that they patient would be instructed to leave the bedside to void in the bathroom following which a vaginal examination would be performed. At that point, the degree of dilatation of the cervix could be assessed and the stage of labour determined, the treating nurse could then telephone the patient's family physician and obtain further instructions. Both nurses believed that the patient might now be entering a more active stage of labour and that the patient was perhaps in need of some other means of pain control. Skidmore expected the doctor would perhaps opt to administer an epidural for pain control. There is no evidence that this nursing plan of action was shared with the patient and indeed, in light of the events which followed, I am confident it was not. [30] It is at this stage that both Nurse Skidmore and Nurse Ha insist the patient was helped from the bed to the bathroom where she was encouraged to void. Since she was unable to void any more than a small quantity, and since she complained she still felt she had a full bladder, Nurse Skidmore and Ha say that the patient was encouraged to take a shower to see whether the shower might induce her to void. The nurses' evidence generally is that Mrs. Guerineau was in the bathroom and then in the

shower from approximately 0125-130 hours until 0210 hours. [31] Mr. and Mrs. Guerineau and Ms. Virginie Olic all emphatically deny this sequence of events. Rather they say that Mrs. Guerineau never showered again after emerging from the shower and returning to bed at approximately 0115 hours. They are adamant that the complaint of the burning sensation in the vagina commenced on that occasion, while she was sitting on the toilet attempting to void, and just before her return to bed. Thereafter they say that Ms. Guerineau remained in bed, complaining of both vaginal burning and pain over the incision site, and presented with her hands clamped between her legs, squeezing the groin area, rocking back and forth and writhing on the bed. They say that she repeatedly pleaded for help and asked the nurses to call the doctor. They say she asked for a c-section to be performed. [32] On cross examination Mrs. Guerineau admitted that her only clear recollection was experiencing the vaginal burning pain and the pain over the incision site as she returned to bed. She says that she looked at the clock on the wall which she insists read 0115 hrs. Relatively heavily medicated and using Entonox almost continuously after 0100 hrs, she understandably has no clear recollection of the events after this point. Her husband and her sister were no doubt distraught and traumatized by the events which

followed. While they vividly recall the horror of the events as they unfolded, I am not confident that their recollection concerning the specific sequence of events is entirely accurate, particularly in the face of the Nurses Notes which appear to have been charted relatively accurately and sequentially as the events unfolded. For the purposes of these reasons, I will assume that the patient did indeed spend the reported and charted period in the bathroom. [33] Notwithstanding this finding, I agree with plaintiff's counsel that this particular divergence in the evidence of the parties is of little consequence. Nurse Skidmore testified that she remained just outside the bathroom door catching up on her charting while Mr. Guerineau remained in the bathroom with his wife. She acknowledged that Mrs. Guerineau remained in considerable pain, so much so that she had taken the tank of Entonox into the bathroom with her. She says that she remained outside the bathroom in the patient's room, "catching up on her charting", until 0200 hrs when she left for her break. By that point, she understood that the patient had moved from the toilet to the shower where she continued in her attempt to void. [34] As the charge nurse, Ms. Ha was responsible for the assignment of the nurse who would relieve Nurse Skidmore during her break. Consistent with her apparent view that Mrs. Guerineau, albeit a

VBAC patient, was a "normal labouring patient", she assigned Nurse McKay as Mrs Guerineau's new primary nurse. While she could not be precise as to McKay's previous clinical experience, Ha understood that McKay, like Skidmore, was "pretty new" to the Labour & Delivery suite. Indeed, McKay was even less experienced than Skidmore. Although she had completed her nursing certificate training in 1992, she did not undergo any labour and delivery training until she undertook the condensed Low-to-Medium risk labour and delivery BCIT course which she completed in the fall of 1997. She did not actually begin to work as a labour and delivery nurse until March 1998. Apart from her practicum training in the labour and delivery suite, she had no more than 4 shifts of actual clinical experience. In the circumstances, her assignment as the primary care nurse is both remarkable and alarming. [35] Doubly alarming is the fact that as Nurse Skidmore left on her break, Nurse Ha, the charge nurse, also left on her own break. While she assigned Nurse McKay to relieve Nurse Skidmore, she assigned Nurse Betty Luk as her own substitute. Nurse Luk was an even more experienced nurse. Like Ha she had trained at a Government Hospital in Hong Kong and had years of experience as a labour and delivery nurse. Nevertheless as at 0210 hours, it is significant that the two nurses who had had any significant

exposure to the patient left on their break. In circumstances in which a VBAC patient was in distress, displaying unusual symptoms not entirely understood by the attending nurses, there was a break in the continuity of care. [36] Before attending to the patient, McKay had received an oral report from Skidmore, outlining the patient's progress and overall condition. McKay was well aware of the fact this was a VBAC patient, who was overdue and had been induced using Prostoglandin gel. She understood that Skidmore and Ha had together assessed the patient. Most importantly, she understood that they had taken a fetal heart strip, which strip was "reactive". She understood the patient had not voided in over three hours and thus had been encouraged to get up to the bathroom to void and then shower in an continuing effort to do so. She understood that both Demerol and Gravol had been administered earlier and that the patient was using Entonox and was drowsy. Skidmore explained that the patient was complaining of vaginal burning, but that this was not unusual, since it was likely a side-effect of the earlier insertion of the prostoglandin gel. McKay understood Skidmore had specifically discussed that matter with Nurse Ha who had apparently shared the same view. Armed with this apparently senior nursing assessment of the patient's condition, this most junior nurse assumed primary care of

the patient. [37] At approximately 0210 hours Nurse McKay entered the patient's room. She observed the patient leaning heavily on her husband, moving slowly back to bed from the shower. She appeared drowsy, consistent with the medications administered. Apparently believing that oxygen would assist in lightening the effects of the Entonox, she presented the patient with an oxygen mask. She instructed the patient to use the Entonox during contractions, and between contractions, to use the oxygen mask. She admits the patient was reluctant to part with the Entonox but that she eventually succeeded in having her alternate the oxygen and Entonox between what she believed to be contractions. [38] Within minutes, Nurse McKay attempted an assessment of the patient but this proved difficult. Mrs. Guerineau had her hands clamped between her legs, in the groin area, and was moving about in the bed, in distress. At some point during this period McKay says she palpated the patient's abdomen and found the uterus soft to the touch. In answer to her questions, she says the patient voiced no complaint of abdominal pain or tenderness, nor any complaint of pain or tenderness over the prior incision scar. [39] She admitted that given the patient's degree of restlessness, she could not assess the pattern of contractions. She repositioned the patient to her right side and auscultated for the fetal

heart. She said the patient was too restless to allow for any attachment of the fetal monitor. Using the transducer from the fetal monitor, she said she succeeded in auscultating the fetal heart for a period of approximately one minute and heard a fetal heart beat of 134 which she recorded at 0215 hrs. Despite her insistence that she clearly heard this fetal heart rate, it is significant that her note reads "fetal heart difficult to obtain." She insisted that the fetal heart rate heard was within normal limits and that she had no concern of there being any sign of fetal distress. [40] At 0220 hours she notes: "patient repositioned further on Rt. Side. fetal heart up from 108 to 117 to 125 BM(beats per min). NO PV loss noted". She attributed the fall of the fetal heart rate, followed by the quick recovery to 125 beat per minute, to either the patient's own position or the baby 's position, resulting in umbilical cord compression. Again, she had no concern that there was any sign of fetal distress. On viewing the patient's perineal area, she saw no sign of fluid, bleeding or other drainage. [41] Despite her insistence that all maternal signs were within normal limits and that there were no signs of fetal distress, it is clear that McKay was alarmed by the presenting situation-a highly distressed mother complaining loudly and audibly of vaginal pain, clutching her groin and

writhing on the bed. I infer that she took little comfort in the reassuring nursing report she had received just minutes earlier and thus moved to the nursing station and called for her superior, Nurse Luk, the substitute charge nurse, to attend and assess the patient. [42] Nurse Luk arrived at approximately 0225 hours. She found the patient as described and immediately asked her to precisely describe the offending pain. She recalled that the patient described a burning vaginal pain. When she asked her precisely where it was, the patient used the tip of her finger to point "right into the area, just above the pubic bone". Luk said that when the patient had a contraction, she palpated the abdomen and like McKay, she noted the abdomen to be soft. She concluded the patient was having mild contractions. [43] She ran her fingers over the incision site and asked the patient whether she felt any pain in that location. In response, the patient confirmed she did indeed feel some pressure and pain. Luk says that she followed this up by touching the incision site but that the patient reported she was not tender there. She asked the patient to roll over onto her back so that she could perform a vaginal examination but the patient was too uncomfortable and restless to do so. Faced with this limitation, she attempted to perform the vaginal examination with the patient on her side. Like

Skidmore before her, she was unable to reach the cervix and again, like Skidmore before her, she concluded she was faced with a patient with a posterior cervix which was therefore difficult to reach. She noted no vaginal bleeding and no blood on the glove. [44] McKay explained that while all of this was underway, the situation was chaotic and confusing, with the patient moving about on the bed and refusing to unclamp her legs for Luk at the foot of the bed, while McKay remained at the head of the bed, alternately administering oxygen and Entonox. In the confusion, McKay says she nevertheless managed to ausculate the fetal heart a number of times. While she could not estimate the number of times she did so, she says she was nevertheless reassured that there was no fetal distress. [45] At this point, Nurse Luk left to call Dr. Seger. The Nurse Note records that the call was placed at 0230 hours. Luk reported the patient's complaint of a burning sensation in the vagina and pain and pressure over the incisional scar, although there was no tenderness over the scar site. She reported further that the patient was having mild contractions, that she had been unable to reach the cervix during the vaginal examination and that there was no evidence of vaginal bleeding. She expressed her view that the patient might require an epidural for pain relief. Dr. Seger advised that he would come in

immediately to assess the patient. In anticipation of an epidural, Nurse Luk contacted the I.V. nurse to arrange for an I.V. to be started. [46] In testimony, Dr. Seger confirmed that he received this report from Nurse Luk. While he could not recall the precise conversation, he testified that it was his practice to ask the attending nurse whether she had any concerns about the fetal heart pattern. After speaking to Nurse Luk, it was his impression that there was no concern about the fetal heart pattern. Although he admitted the information relayed to him was sufficient to raise the possibility of a uterine rupture, he testified that he was reassured by Nurse Luk's characterization of the fetal heart rate. Nevertheless he decided that he needed to attend at the hospital to assess the patient himself. [47] He testified that at 0230 hours, had Nurse Luk told him of the deceleration of the fetal heart to 108 beat per minute at 0220 hrs, his suspicion of a uterine rupture would have been heightened and he would have either personally contacted Dr. Pedersen, the obstetrician on call, or left instructions with the nurses to contact her directly in the hospital where she was sleeping. However in light of the information received, he saw no need for an urgent clinical assessment of the patient. There was no evidence from Nurse Luk to suggest that she relayed any information concerning

the deceleration to Dr. Seger. [48] Nurse Luk returned to the patient's room to advise that Dr. Seger had been called and would be attending. At that point she and McKay tried unsuccessfully to pass the fetal monitor belt under the patient and reattach the fetal monitor. The patient was on her side, restless, writhing and unable to comply with their directions. [49] Eventually at 0248 hours the fetal monitor was applied. At that point a fetal heart of 140 was heard, followed by at note at 0250 hours which reads "poor pick up of the fetal heart transducer." After this point, Nurse Luk testified they could not hear the fetal heart on the monitor. They tried without success to reposition the patient and the transducer so as to improve pick up of the heartbeat. In effect, no fetal heart could be traced. (I should note here that one of the plaintiff's nursing experts, Nurse Bushinski, described the tracing from 0248 until approximately 0308 hours as a "terminal agonal tracing-meaning the baby is suffering from severe acidosis and is dying".). [50] During this time frame, and prior to 0254 hrs., the patient announced that she felt the urge to urinate and push. She announced she believed she had urinated. Mr. Guerineau and Virginie Olic were standing at the foot of the bed. Mr. Guerineau testified he could see that his wife was bleeding from the vagina. He saw what he described as a

"large ball" or a large swelling on the inside of her right thigh. Virginie Olic described seeing "blood gushing from everywhere" and "a big ball of blood" on her sister's leg. She recalls screaming and the nurses rushing to the bedside and struggling to find the fetal heartbeat. [51] I have been asked to essentially ignore the husband's and sister's evidence as the reflection of panic and emotional overload and in the sister's case, the additional factor of jetlag. Yet I note that even according to Luk, at the point the patient believed she had urinated, Luk indeed found "some dark red tinge..like diluted blood around the area, right outside the external genitalia". She referred to finding "scanty blood" on the patient's body. Whatever occurred, it appears that some quantity of blood was actually expelled under some pressure. Further it is significant that while none of the medical evidence touched on the issue of the swelling on the thigh, for some time post delivery Mrs. Guerineau suffered from extreme perianal pain caused by external thrombosed hemorrhoids, which ultimately required incision under local anaesthesia. In addition she was treated for a laceration of the bladder. I mention this evidence to put the husband's and sister's evidence in context. I do not at all reject their evidence that some form of swelling of blood was apparent in the upper inner thigh area near

the perineum. (While Dr. Pedersen could not recall any blood in the general vicinity, it was clearly not the focus of her examination in the medical emergency in which she found herself.) [52] Luk's Nurses Note records that she placed a STAT call to Dr. Pedersen at 0254 hrs. At this point she also charts a fetal heart of 90-100 beat per min. although a question mark appears in the record next to the recording of the fetal heart. [53] At 0300 hrs (within 6 minutes of being paged) Dr. Pedersen, who was on call and had been sleeping in the hospital one floor above the Delivery Suite, was at the patient's bedside. She performed a vaginal examination and noted there had been a loss of station of the fetal head. She was unable to find any fetal heat beat. She immediately concluded that there had likely been a uterine rupture and that the baby had been extruded from the uterus. She ordered a STAT c-section. She successfully delivered the baby by emergency c-section at 0323 hours. As the Operative Report describes, the baby was found in the abdominal cavity. 3.0 THE DUTY OF CARE: [54] As I noted at the outset, the issue in this case is whether the individual nurses breached the duty of care they owed to Mrs. Guerineau and her unborn infant by failing to recognize and to report to the attending physician or the obstetrician on call, various possible signs of uterine rupture. The

Hospital's position is that the signs relied on by the plaintiffs as signs of uterine rupture were consistent with a normal labouring patient or were not suggestive of possible uterine rupture. The Hospital submits that the nurses may have erred in the exercise of their clinical judgment, which error does not however found an action in negligence. (Wilson v. Swanson (1956) 5 DLR (2d) 113 (SCC)); Heidebrecht v. The Fraser-Burrard Hospital Society (1996 BCJ No. 3042, Vancouver Registry No. C933456). [55] Both of the physicians involved in this case-Dr. Seger and Dr. Pedersen--- testified as adverse witnesses on behalf of the Plaintiffs. They each provided detailed evidence as to what information they expected the nurses would have conveyed to them and what they would have done in each case, had that information been relayed. [56] Specifically, Dr. Seger testified that had he been aware of the patient's complaint of a burning sensation in the vagina at 0110 hrs, he would have immediately considered the possibility of uterine rupture and personally attended at the hospital to assess the patient. Further he testified that during the telephone call from Ms. Luk at 0230 hrs, had he been informed of the deceleration of the fetal heart at 0220 hrs., he would have either personally contacted Dr. Pedersen or he would have asked the nursing staff to do so on his behalf. [57] Dr. Pedersen

testified to similar effect. She testified that had she been informed of the complaint of the burning sensation in the vagina at 0110 hrs., either with or without a complaint of pain or tenderness over the previous caesarian incision line, she would have personally attended. Assuming she would have then viewed what she described as the non-reassuring fetal heart monitor strip recorded between 0108-0120 hrs, she testified she would, in all likelihood, have conducted an urgent caesarean section-that is she would have been prepared to wait no more than 10-15 minutes before commencing surgery. [58] The Hospital's counsel has submitted that the Court ought to place little reliance on these physicians' testimony. Relying on the decision in Heidebrecht (supra) Ms. Harper submits that nursing is an independent profession with its own practices, procedures and standards of competence. There Henderson J. held that "The fact that (the treating physician) would expect to be notified by a nurse of these new symptoms does not, standing alone, demonstrate that the nursing staff was guilty of anything more than a possible error in judgment in failing to bring them to (the doctor's) attention." [59] I note the qualifying words "standing alone". Here, there is indeed expert nursing evidence which is highly critical of the nurses' actions and inactions. While the treating doctors' expectations

will not set the applicable standard of care, I find that those expectations are highly relevant and probative in determining whether the nurses' standard of care has been met. This is particularly so in the context of an obstetrical ward where the physicians and nurses work together as a close team. [60] That dynamic was eloquently articulated by Cunningham J. in the Granger v. Ottawa General Hospital, (June 14, 1996) Ontario Registry, 18473/90 at page 16-17: Whether or not this relationship exists elsewhere, more particularly in some parts of the United States, it seems to me that one of the hallmarks of the Canadian health system in a tertiary care hospital such as the Ottawa General Hospital with all of its attendant teaching responsibilities, is that those involved in obstetrics work as a team and that the interaction between members of the team is vitally important particularly in terms of reliance on one another for the provision of accurate information. Looking carefully at the evidence of all obstetrical experts called, I have little doubt that our system of health care, with its obvious concerns for patient care as well as its defined budget considerations, could not function in any other way. We simply do not have the financial resources to enable every professional to double check the work of other professional and because each professional within the obstetrical

team has a defined role, it is essential that each person's role be carried out within a standard of care and training appropriate to the professional involved. If staff obstetricians, for example, cannot rely upon the staff obstetrical nurses to provide accurate assessments, given all the constraints under which they are operating, I am satisfied our system would fail... It is not the responsibility of the staff obstetrician, assigned, during a particular shift, coverage of a number of patients including labouring mothers to sit with the mother and monitor her throughout her labour and then deliver the child. We simply do not have the resources nor would it be necessary for this to be done. That is why we have presumably well-trained and competent staff nurses who have a defined role within the obstetrical team. It is not for the obstetrical nurse to fully understand all of the subtleties that may be determined on a fetal heart monitor strip, but it is the responsibility of that nurse to understand and report problems to someone else on the obstetrical team, problems such as severe persistent variable decelerations...." [61] This judicial description of the dynamic was accepted by both of the defence nursing experts in the case at bar. I find that the statement accurately describes the dynamic between the nursing staff and the physicians at the Hospital. 4.0 LIABILITY: [62] On

a review of all of the evidence in this case, I have concluded that there is overwhelming evidence of negligence on the defendant nurses' part. I find that that negligence arose from the time Mrs. Guerineau first began to complain of vaginal burning between 0110 hrs. and 1115 hrs. and continued until Dr. Pedersen was finally paged at 0254 hrs. I agree with Mr. Smith's submission that while the negligence was continuing, it can be broken down into three discrete points in time: 4.1 The initial Complaint of Vaginal Burning at 0110 hrs: [63] Both nursing experts, Ms. Radmonovic and Ms. Buchinski, were adamant that as soon as the patient began to complain of the vaginal burning pain a doctor ought to have been notified. It is significant that this was not a pain in the nature of a minor irritation. Rather as Ms. Radmonovic notes even as of 0110 hrs., the patient "was obviously distressed to the extent that the attending RN was unable to get a toco pickup of the contraction pattern." As Ms. Bushinski opines in her report of November 6, 2000: Nurse Skidmore should have then assessed the entire clinical picture and identified that Mrs. Guerineau's degree of pain was inconsistent with what would be expected in her circumstances. She should have, as a result of her assessment, reattached the fetal monitor in order to evaluate the fetal well being, assessed the mother thoroughly-ie.

vital, signs, etc.- and ensured that the charge nurse and Dr. Seger or Pedersen were informed of the disturbing clinical picture. This is particularly true because of the fact that Mrs. Guerineau had had a previous C-section and thus was more at risk for a uterine rupture. [64] Although she did indeed consult with the charge nurse, Ms. Skidmore was apparently content to accept Ms. Ha's opinion, which apparently mirrored her own, that the patient was likely experiencing vaginal irritation caused by the earlier insertion of the prostaglandins gel. Nurse Ha coupled that erroneous assumption with her own erroneous assumption-that the patient had a full bladder and that the emptying of the bladder would somehow alleviate the patient's complaint. Accordingly the patient was instructed to void and failing in that attempt, instructed to shower to again assist in voiding. Any ongoing attempt to monitor the patient and more particularly the status of the fetal heart was discontinued-held hostage to the assumption to which the nurses held fast-that the complaint of vaginal burning was not associated with uterine rupture. [65] I am satisfied that on any reasonable analysis, this assumption could not be supported. As Ms. Radmonovic testified, while the prostoglandin gel might cause some burning sensation in the vagina within 20-30 minutes of insertion, this is not likely the case where the

first dose of gel was inserted almost 12 hours earlier and the second dose some 61/2 hours earlier. This was all the more so where there had been no complaint whatsoever of vaginal irritation or burning in the intervening period. [66] Indeed, the Hospital's own nursing policy concerning the administration of prostoglandin anticipates that following insertion of the gel, the patient will be monitored for one hour, while the nurses look for a variety of potential side effects, including "vaginal irritation". (see Ex. 1, Tab 3, page 3-4). Assuming no labour ensues and no such side effects are encountered, the patient may be discharged home. The fact that the Hospital's own policy anticipates any degree of vaginal irritation is somewhat surprising given that the drug manufacturer's pharmacological insert information sheet (Ex. 12) makes no mention whatsoever of vaginal irritation or burning in its list of adverse reactions. [67] Thus in the context of both the Hospital's policy, the anticipated drug reactions to the gel, and this patient's own history following two separate insertions of gel some hours earlier, the sudden onset of this complaint of intense vaginal burning constituted an obvious change of circumstances. It was a pain which was unusual and by definition, one which ought to have put the nurses on high alert and caused them to immediately contact either the patient's

attending physician or the obstetrician on call. As I mentioned earlier, both Dr. Seger and Dr. Pedersen testified that they would have expected such a complaint to be reported, justifying an immediate attendance on the patient and a reassessment of her clinical condition. [68] The sudden complaint of an unusual pain was particularly ominous in the case of a VBAC patient. As both Dr. Kinney (the expert obstetrician) and Dr. Seger testified, where a VBAC patient is undergoing a trial of labour, any unusual pain should immediately arouse suspicions of potential or actual rupture. [69] This evidence and the evidence of the nursing experts called on behalf of the plaintiffs was entirely consistent with the Hospital's own nursing policy concerning the care of VBAC patients (NPT1000 Vaginal Birth After C-Section). That policy list as a "reportable condition": ● Pain [1] Localized or generalized which persists or becomes more severe with contractions. [2] Severe pain followed by sudden cessation of pain [70] The policy does not describe or limit in any way the nature or location of the "reportable" pain-that is whether it must be located in the abdominal area or in the area of the previous Caesarian incision-which the defendant nurses said was the locale of the pain they were looking for. [71] In defence of the attending nurses' reaction to the situation at hand I heard the expert

evidence of Nurse Porter and Nurse Stam. Nurse Porter, who is a very experienced obstetrical nurse, testified it was reasonable for the nurse to assume that the vaginal irritation was related to the insertion of Prostin many hours earlier. I found her explanation entirely conclusory in nature and somewhat facile, with no explanation of her underlying reasoning. This same witness' marginal note in her own copy of Ms. Radmonovic's report, contained in her own file, recorded that it was "possible" the RN had failed to immediately notify the Obstetrician of "reportable complaints " within the Hospital's own policy. She attempted to deflect the significance of her note, stating that she made the note in the course of her initial review of the file, but before she had received the fetal monitor strips and copies of the Hospital's policies. [72] Since it might be inferred that her review of the fetal monitor strip somehow allowed her to resile from her first impression of the case, her evidence relating to the fetal monitor strip at this critical time bears examination. In this context it is significant that her report (Ex. 11) makes almost no reference to the fetal heart monitor strip, except in the body of the assumptions she made in reaching her opinion. There she assumes that at 0115 hrs, when the fetal heart monitor was commenced: good reading of Fetal heart at first- baseline

145-155, variability average however patient was moving + + therefore it became difficult to pick up either fetal heart or contractions on monitor strip. (my emphasis) The "assumption" contains no reference to nor any analysis of the "non-reactive non-reassuring " fetal heart pattern described in the Radmonovic report to which Porter was responding. No specific opinion concerning the issue of whether the strip is assuring or non-reassuring is offered. Accordingly at trial, while I allowed the witness to expand her evidence in terms of fleshing out or explaining the assumption she made, I sustained plaintiff's counsel's objection that she not be allowed to expand her evidence into an opinion as to whether or not what was recorded on the strip reflected signs of fetal distress, sufficient to necessitate reporting the matter to the attending physician. [73] In the final analysis, Ms. Porter's evidence offers no reasonable explanation of how the complaint of intense vaginal burning, which arose suddenly at 0110 hrs and continued unabated for almost two hours thereafter, could possibly have been rationalized by any competent nurse as a "vaginal irritation", and merely a side effect of prostoglandin gel. [74] The Hospital's second nursing expert, Mr. Robert Stam, also opined that the nurses were reasonable in attributing the patient's complaint of vaginal burning to the earlier

insertion of the prostoglandin gel. He recalled treating a patient who was discharged home following induction who returned to hospital some 4-6 hours later complaining loudly of vaginal pain. While the anecdote is interesting, it is of little assistance in the absence of any information concerning how those symptoms progressed during those earlier 4-6 hours and whether or not there was a sudden, intense onset of pain as in the present case. [75] In any case, I can not give any substantial weight to Mr. Stam's evidence given his history as a nurse largely occupied with the analysis of equipment and technologies and the compilation and analysis of nursing care standards, in his capacity as a nursing manager. He admitted that he had little or no experience as a bedside clinical nurse in a labour & delivery suite. His opinion as to what a reasonable nurse, exercising her clinical skill and judgment, ought to have done in this case is of little assistance to the Court. [76] On a review of all of the evidence, including the evidence of Dr. Seger, Dr. Pedersen, Nurses Radmonovic and Bushinski, and the Hospital policies, I am satisfied that the nurses' failure to report this single symptom-the sudden onset of intense vaginal burning pain-which persisted for almost two hours thereafter, amounted to negligence on their part. This negligence continued throughout the balance of the

patient's labour up to the time of the uterine rupture and emergency c-section. I am satisfied that this single continuing act of negligence justifies a finding of liability against the hospital. 4.2 The fetal heart monitor strip: [77] As may already be apparent, the onset of the patient's complaint of vaginal burning is overlaid by the recording of the fetal heart from 0108 to 0130 hours. Quite apart from rationalizing the complaint of vaginal burning as a side effect of the prostoglandin gel, the nurses have, to some extent, defended their analysis by pointing to the fetal heart strip recorded at this time, which strip they characterize as a "reactive" and "reassuring " strip. [78] Nurse Skidmore admitted that the strip in fact reflected reduced variability but she discounted any concern in this regard, attributing the reduced variability as an effect of the Demerol administered at 0020 hrs. Her view was apparently supported by her superior, Ms. Ha. [79] Nurse Skidmore at least conceded that if the decreased variability she had recognized, had been accompanied by decelerations or lack of accelerations, she would have reported the strip to the doctor. It appears the strip did in fact contain those features but that Nurse Skidmore simply failed to recognize them. [80] The nursing expert evidence from both Nurse Radmonovic and Bushinski, adduced on behalf of the plaintiff, was

clear that the fetal heart monitor strip was non-reactive, that is-there were no accelerations of the fetal heart noted. Accelerations are an indicator of fetal wellbeing. In addition there are questionable late decelerations-that is the fetal heartbeat does not appear to rise as expected following a contraction. [81] Nurse Bushinski notes that there was a pick up of a fetal heart of 60 at 0122 hrs. She notes: It is probable that the recording of 60 beat per minute represents a deceleration of the fetal heart rate. The transducer that would pick up any maternal contractions was adjusted at approximately 0118 hrs-there is no clear contraction pattern evident on the monitor strip. It is probable that any markings picked up and which appear on the tracing at this time were caused by Mrs. Guerineau rocking and moving about on the bed in pain. At 0125 hrs Nurse Skidmore's main concern was that Mrs. Guerineau had not voided. A reasonable and competent nurse would have placed any concern over a full bladder well below the possibly much more ominous causes of Mrs. Guerineau's pain and overall clinical picture.....Nurse Skidmore should also have prioritized her concern for the fetus' current well being, which would prompt her to continue carefully monitoring the baby. Nurse Skidmore instead removed the fetal monitor and assisted Mrs. Guerineau to the bathroom. A prudent nurse would have

continued monitoring the fetus and called the physicians, requesting them to attend immediately. Nurse Skidmore's actions indicate that she did not recognize the significance of the clinical picture with which she was faced, whereas a reasonable and competent nurse would have done so. While Mrs. Guerineau was in the bathroom and then the shower, attempting to void for 40 minutes (from 0130 hours until 0210 hours)-the fetal heart was not monitored in any way. It could have been checked while the patient was in the bathroom, by way of doptone, fetascope, or even with the monitor if the cord was long enough. The physicians were not called. [82] Both Dr. Seger and Dr. Pedersen (the obstetrician called as an expert witness on the plaintiffs' behalf) echoed this evidence. Dr. Pedersen testified that the strip was clearly non-reassuring and that she expected she would have been notified in these circumstances. She testified she would have immediately attended on the patient, examined her, continued fetal heart monitoring (by placement of a scalp electrode) and if there was a continuing concern of late decelerations and the patient was not fully dilated, she would have performed an urgent c-section. [83] I have already commented earlier on the evidence of Nurse Porter, the defence nursing expert, as regards her interpretation of the fetal heart monitor strip recorded at this juncture.

I will say no more. Nor do I find it necessary, for the reasons outlined earlier, to address Nurse Stam's evidence. [84] I entirely reject the defendant nurses' submission that their failure to properly interpret the fetal heart monitor strip was simply a matter of differing clinical judgment. While it may be that various nurses would have differing interpretations of the strip and might have attributed the decreased variability and poor pick-up to the earlier narcotics administered and the mother's restlessness and distress-it behooved Nurse Skidmore, the primary treating nurse in this case (who on her own evidence admits the decreased variability), to follow up the matter and pursue continued fetal monitoring in an effort to obtain clear reassuring evidence of the fetus' wellbeing, thus ruling out any danger to the mother and baby. This is all the more so in the case of Nurse Ha, the much more senior experienced nurse. In effect both nurses short-circuited the process of differential diagnosis, immediately accepting the simplest explanation of the decreased variability (ie. narcotics) without clearly ruling out the perhaps less likely, but much more dangerous possibility of uterine rupture. I find that the nurses' failure to pursue this matter and their discontinuance of the fetal monitoring amounts to negligence. 4.3 The Period between 0210 hrs and 0254 hrs: [85] As I noted

earlier, notwithstanding the continued unabated pain of the patient, Nurse Ha apparently saw fit not only to replace Nurse Skidmore with Nurse McKay, an even more junior nurse, but she also saw fit to chose this time to leave on a break herself. The two nurses who had had the most significant contact with the patient to this point were now off the scene. Left to contend with this state of affairs and apparently deal with the distraught patient as she emerged from the bathroom, was the unfortunate Nurse McKay. Although armed with all of the erroneous assumptions made by her senior nurses, she nevertheless realized quite quickly that the situation was beyond that earlier reported. [86] She struggled in her attempt to obtain a fetal heart rate and eventually recorded a fetal heart rate of 134 at 0215 hours followed by a deceleration to 108 at 0220 hours. At trial she admitted that while she believed the deceleration was caused by cord compression resulting from either the patient's or the baby's position, it was impossible to draw this conclusion with any certainty in the absence of a fetal heart monitor strip and with no ability to assess the contraction pattern. [87] Both Nurses Radmonovic and Bushinski opined that a competent nurse would have commenced fetal heart monitoring immediately, that is as at 0210 hrs, so as to determine fetal well being. They criticize the time wasted

trying to instruct the mother in the use of oxygen-since there was no question of maternal oxygenation. Further they say that Nurse McKay ought to have called for assistance in placing the fetal monitor properly and locating the fetal heart beat. If that proved difficult, then a reasonable and competent nurse would have checked further for the fetal heart using either a fetascope or a doptone, if unable to locate it by way of the monitor. [88] As I noted earlier, the deceleration to 108 at 0220 hours was not considered ominous, notwithstanding the nurse's inability to determine whether the deceleration was related to a contraction or not. By this point she had still neither recommenced monitoring nor had she called a physician. While I have every sympathy for Nurse McKay, who stumbled quite innocently into the situation in which she found herself, I find that due entirely to her complete lack of clinical experience, compounded by the erroneous judgment of her superiors, she failed to act in accordance with the standards of a reasonable competent obstetrical nurse. [89] I note however that she did seek the advice of her superior, Nurse Luk. [90] Notwithstanding her own ominous findings on examining the patient at 0225 hrs., Nurse Luk compounded the problem, first by calling the general practitioner rather than the obstetrician on call in the hospital at 0230 hrs, and then by

failing to even inform Dr. Seger of the earlier deceleration at 0220 hrs. As Nurse Bushinski has opined, on viewing the patient at 0225 hrs, a competent obstetrical nurse would have called any physician available in the hospital on a "stat" basis immediately. The time had long passed for a call to a physician at home, that physician not likely being able to attend on the patient for another 20-40 minutes. As Nurse Radmonovic has noted, the patient's complaints at 0225 hrs. constituted "an emergency situation and had in fact been so for some time". [91] Then at 0254 hrs, after a relatively rapid examination of the patient and a determination that the patient was complaining of both a burning vaginal pain and pain over the incision scar, Nurse Luk placed a STAT call for Dr. Pedersen from the patient's bedside, on the overhead intercom. [92] The time frame from 0210 hours until 0254 hrs., when Dr. Pedersen was paged, constitutes a valuable 44 minute period -- in which time was lost and the uterus was either in the process of rupturing or had ruptured, and the baby was in the process of being extruded into the abdominal cavity. I find that both Nurse McKay's and Nurse Luk's actions and inactions during that time frame constitute negligence on their part. 5.0 CAUSATION: [93] While the issue was never conceded by the defendant Hospital, there was no evidence of any kind adduced on

the defendants' behalf to suggest that the infant's injuries were caused by any process other than the uterine rupture and resulting asphyxiation. The evidence which was adduced on the issue of causation was overwhelming and uncontradicted. [94] Dr. Pedersen and Dr. Kinney (the expert obstetrician called on behalf of the plaintiff) testified that the major injury to a baby occurs not when the uterus ruptures but rather after the baby has been extruded from the uterus and the flow of blood and oxygen through the placenta and the umbilical cord has been cut off or seriously compromised. There is therefore a time period between the initial rupture and the extrusion, during which prompt delivery will prevent or minimize hypoxic injury. The length of this period of time will depend on the size of the initial rupture and how quickly it grows. [95] Dr. Selby, the paediatric neurologist called on behalf of the plaintiff, opined that Jesse has suffered a "severe prenatal hypoxic ischemic encephlopathy secondary to maternal uterine rupture." (Ex. 1, Tab 4) He explained how, once the hypoxic process begins, the severity of the resulting injury depends on how long the hypoxia is allowed to continue. As he noted, the longer the time frame from the event (the uterine rupture) until the delivery of the baby, the greater the physiological changes in the baby which occur as a result of the lack

of oxygen and blood supply. The resulting acidosis results in a build up of lactic acid which in turn results in a greater impairment of neurological function. At some point, the process reaches a point where it is irreversible-as was the case here. [96] In the absence of an earlier emergency C-section, it is impossible for any of the medical experts to know exactly when compete extrusion occurred in this case. Mr. Smith concedes that that event might not have occurred even by 0225 hrs. when Nurse Luk palpated Mrs. Guerineau's abdomen. At that point in time, she was apparently unable to feel any fetal parts in the abdomen - one of the signs of complete extrusion. If that is so, then as at 0225 hrs, or even shortly thereafter, there may still have been an opportunity to interrupt the hypoxic process and minimize hypoxic damage. Even post extrusion, there is still time to interrupt the hypoxic process and minimize damage. In this case, each minute counts. As Dr. Hahn, an expert physician in paediatrics and physical medicine and rehabilitation opines in his report (Ex. 1, Tab 5): ...The episode of acute hypoxaemic ischaemic encephalopathy, sustained for a number of minutes ex-utero prior to emergency Caesarean Section, compounded by several more minutes required to establish reasonable neonatal cadiorespiratory status, has produced the classically recognized partial loss of

structure and function in the base of the brain which, in embryonic, fetal and neonatal life constitutes the most metabolically active part of the brain. [97] The only way to prevent or minimize the injury in question is to perform an emergency C-section as quickly as possible, so as to remove the baby from the dangerous environment. As I have noted earlier, had Dr. Pedersen been informed of the patient's condition, at any time after 0110 hrs, when the complaint of vaginal burning first arose, that C-section would have been performed, likely within a half hour. Even if Dr. Pedersen was not called until 0230 hrs, (when Nurse Luk instead called Dr. Seger), the injury could still have been prevented or at least minimized. [98] On a review of all of the evidence and on an application of either the "but for" test or the "material contribution" tests articulated in Athey v. Leonati (1996) 3 SCR 458 (SCC), the plaintiffs have overwhelmingly proven on a balance of probabilities that the nurses' negligence has caused the plaintiffs' injury and loss. 6.0 ASSESSMENT OF DAMAGES: 6.1 Non Pecuniary Damages: [99] By any account, Jesse has suffered a catastrophic injury. The plaintiffs' submit that although his severe injuries may limit his ability to appreciate what he has lost, his condition cannot be equated to a "vegetative state". Accordingly they say that the award for non-pecuniary

damages ought to be at or near the upper limit, which is approximately $265,000. [100] The defendants submit that adopting the functional approach described in Lindal citation, the purpose of an award for non-pecuniary damages is to substitute other amenities for those which have been lost. In the circumstances of this case, the defendants say that since Jesse does not have the capacity to appreciate the provision of other amenities through an award of non-pecuniary damages, an award in the order of $75,000 would be appropriate. [101] When Jessie was removed from his mother's abdomen he was "clinically dead" but vigorous efforts succeeded in establishing a cardiorespiratory supported status. While he survived, he has been left with a host of problems including a severe global developmental delay, spastic quadriplegic cerebral palsy, epilepsy, cortical visual impairment, feeding problems, recurrent aspiration pneumonias, development of scoliosis and severe mental retardation. [102] Jesse weighs 27 lbs.-a weight which apparently puts him at the 5th percentile level amongst his peers. He cannot stand, walk, crawl or weight bear in any way. He is usually positioned in a small wheelchair with a specially adapted support form, or is held on one's lap, with his neck in slight extension with the upper extremities extended at the elbows and wrists. Even in bed, he is kept in a somewhat

raised position. He has no bowel or bladder control. His feeding is accomplished almost entirely by way of a G tube connected to his stomach. He cannot talk. He cannot hold objects. He can hear. While he has some degree of vision and demonstrates some degree of visual tracking, it is impossible to determine the precise degree of his vision. [103] Dr. Joschko, the clinical child psychologist and neuropsychologist who evaluated Jesse on behalf of the defendants, details the following observation of Jesse's behaviour during his home visit (see report dated October 27,2000, page 7-8): ...According to Mr. and Mrs. Guerineau, Jesse shows pleasure and enjoyment by smiling or laughing- he does this for example when he is about to be tickled (and sees a hand approaching him) or when he hears the familiar voice of a family member. During the time I spent in his home, Jesse clearly showed such positive reactions to his mother clapping her hands or gently stroking him; on one occasion he turned his head toward his mother when he heard her voice. Although his parents are uncertain whether he can recognize them by sight, they are quite certain he responds differently to their voices than he does to the voice of a stranger. I observed Jesse smile and respond to his parents' voices and interactions with him; he did not show the same reaction to my presence or to my voice when I was off to the

side or behind him. With the exception of the reactions to his parents' voices or interactions with him, I did not observe any indication that Jesse was aware of, or interested in, what was happening around him. He was very content simply to sit in his tumble form, lay on the floor, or to be held in his parents' or' therapist's arms. During the time I spent in his home, Jesse, ...did not make any movements or sounds to call attention to himself or his needs; that is he did not appear to initiate any contact with his parents or others. He was clearly a very passive recipient of whatever attention those around him might provide. .... I did not observe any indications of Jesse using eye contact or gestures to communicate. Neither Mr. or Mrs Guerineau, nor Jesse's therapists, provided any examples of Jesse attempting to communicate or initiate interaction with others. His parents and therapist report that Jesse likes stimulation and attention in the way of tickling, holding, rocking or being pushed in his stroller. He apparently makes a "grumpy" sound or shows some physical reaction if he is unhappy, and his facial expression clearly changes if he is happy or upset, but he does not otherwise provide any indication of the ability to communicate. Jesse apparently reacts negatively with a startle reaction to loud noise or a cold wash cloth, and he seems to indicate that the enjoys

music by making some positive response such as a pleasant, laughing sound or a physical reaction like a smile. There is no reliable indication that Jesse actually visually recognizes people as different from one another. Mr. and Mrs. Guerineau stated that Jesse most likely could not discriminate one person from another if people approached him without speaking. ....Other than seeming to enjoy being held tickled or moved, Jesse did not appear very alert or responsive to his parents or therapist during the time I spent observing him. To the extent it was possible for him given his physical limitations, Jesse did not exhibit any curiosity about me as a stranger; that is, he did not react at all to my presence, or to my voice or my touch. Concerning his estimated cognitive abilities, Dr. Joschko further notes at p. 9 of his report: ....I did not observe any evidence of age-appropriate levels of attention at any time during my evaluation.. Mr. and Mrs. Guerineau reported that Jesse does not attend to television-he doesn't watch or appear to notice if his sister, Kelly, is watching television. However, he apparently will watch the cat or people walk by. He has also been observed to "focus" on his cousin ...or other children for short periods of time (a few minutes). Although his parents put on audio tapes for Jesse to listen to, they said that he does not react differently to tapes

of different types of music. During my evaluation, Jesse did not show any evidence of attending to what was happening or being said unless he was being directly stimulated and touched-even then he seemed to "drift off" at times. ...With the exception of Mr. and Mrs. Guerineau's comments that Jesse enjoys being held and tickled, there were no indications in the reports I reviewed and in the comments of his parent or therapist that Jesse's attentional abilities are significantly better or worse during auditory, visual, or tactile activities. Attentional ability is a very important component of intelligence and is crucial for the development of cognitive skills and abilities. On the basis of my observations and the reports of his parents and therapist, it appears that Jesse is only minimally aware of his surroundings, and that he is mostly withdrawn and inattentive. .. ...Mr and Mrs. Guerineau could not provide examples of Jesse having any memory ability beyond some simple associations of voice with person, the presence of a hand with tickling, or being picked up with movement. His therapists, however, report that he may show some preference for certain toys (ie. a Ernie doll that makes noise and flashes lights) - I did not observe Jesse react to this toy until it began making some noise. His aunt said to me that Jesse laughs when he hears her voice over the phone, and that when

he is in the hospital he responds better to his parents than to nurses.... [104] Dr. O'Donnell, the developmental paediatrician who testified on behalf of the defendants, opined that it was unlikely Jesse would ever develop the cognitive ability to use communication devices or initiate any simple switch device, since he has not demonstrated any cognitive awareness of cause and effect to date. Dr. O'Donnell conceded that in the future, it may be possible that Jessie could use a simple switch-that is touch a switch with his leg or knee and thus perhaps activate a music tape. However she doubted he would ever use a switch to turn a TV on or off. While he might activate a communication-loop tape to attract other children to him (ie a tape which said "come play with me"), she testified that he has not demonstrated the cognitive ability to choose to use such a switch. While it was possible he might develop that ability, she believed it was not highly likely. [105] Nevertheless Dr. Hahn described Jesse as a rather visually attentive child. He states at p. 19 of his report: It is fortunate, at last in early life, Jesse's cerebral hemisphere were relatively spared. That may be the reason why he has been a rather visually attentive child. The visual pathway's conduction and interpretation of vision are at the level of the cerebral hemispheres. In view of more recent lateral cerebral

infarction, however, it may be that part of his visual field may have been compromised.... The fact that his cerebral hemispheres and a good portion of his limbic pathways have been relatively intact may also explain that he does have, considering the extent of his hindbrain dysfunction, some expressive ability and ability to interact in a pleasing social sense with his family. [106] The issue is, given the present level of his limited cognitive function and the possibility of only minimal future improvement, is this an appropriate case for an award of non-pecuniary damages at the upper limit? [107] Mr. Smith submits that in a number of recent cases, where infant plaintiffs have suffered a similar array of global injuries, awards at or near the upper limit of damages have been made. (Delaronde v. HMTQ (2000) BCSC 700; Brimacombe v. Mathews (Jan 18/90) Victoria Registry 95/4862, BCSC; Granger v. Ottawa General Hospital (supra) and Bauer v. Seager (2000) M.J. No 356 (Man Q.B.)) [108] In Delaronde, where the infant apparently suffered almost identical injuries, an award at the upper limit was made. In Brimacombe, where the infant suffered similar injuries but was described as a "very social and responsive little fellow" who demonstrated curiosity and an awareness and enjoyment of his environment and social interaction, the award was also at the upper limit. In Granger, where the

child exhibited certain cognitive features (ie. turning to sound, following simple commands, laughing at television and enjoying certain stories, recognizing the names of favourite students at school), the award was also at the upper-limit. [109] In Bauer, the child had suffered very similar injuries to Jesse, yet was described as an "alert, visually and socially active girl able to follow commands, reaching for toys...". The Court rejected the plaintiff's physicians descriptions of the child as either overly optimistic or overstatements of the child's abilities. He accepted that while she was not in a vegetative state, she had suffered a severe neurological injury, that she was able to respond only minimally and that she was not likely to enjoy any significant future improvement in her condition. The Court noted the general approach adopted by Lissaman J. in Chow (following Cunningham J. in Granger (supra)) at para 285: It has now been suggested very strongly that awarding the 'Trilogy" amount of damages to Michael Chow would clearly be overcompensating. In cases such as these, where the trial judge necessarily has to be somewhat arbitrary in her or his decision, it seems to me that a trial judge should only award nominal amounts for general damages when he or she is absolutely certain that such monies will not be needed for the plaintiff's benefit. I intend in this regard to

err on the side of caution and compensate Michael Chow in the full amount of non-pecuniary general damages dictated by the 'Trilogy'. The Court went on to say: This general approach, on the evidence before me with respect to Ellen's ability to at least respond, albeit minimally....is reasonable. Faced with the obvious difficulties in determining, on balance, a reasonable probable life expectancy for Ellen, there is a risk that this court could "under compensate" in the very important area of future care costs. Non-pecuniary general damages will, in my view, provide some degree of solace for Ellen and will enable her parents to acquire any necessary additional care, equipment and facilities that may develop or become available from time to time and may not be included in the court's award for future care costs. Taking into account that the current value of the "trilogy" awards is $263,000 +/-, I would award non-pecuniary general damages to Ellen, recognizing the reality of her limits as attested to by many of the experts in this trial, of $200,000. [110] In my view, the circumstances at bar, are much closer to those in Bauer, than to those in either Granger or Brimacombe. I have no complete understanding of the child's actual level of awareness in Delanronde. [111] While I am satisfied that Jesse will demonstrate very little improvement in the future and will remain minimally

aware of his environment, he is nevertheless a responsive child and an apparently visually active child. Dr. O'Donnell conceded that even the most minuscule achievement in functional improvement may result in a dramatic leap forward in terms of his ability to interact with his environment. I expect that the huge technological advances in the recent past, which have so vastly improved such childrens' lives, will continue into the future and perhaps some day, will allow Jesse at least some further, although perhaps a minimal, levels of enjoyment. [112] Like Lissaman J. in Chow I am also concerned that given the dire predictions regarding Jesse's future life expectancy, there is also the possibility Jesse may outlive those predictions and that this Court's award for future care costs may possibly "under-compensate" him. [113] In these circumstances, I award $200,000 for non-pecuniary damages. 6.2 Life Expectancy [114] There is no huge dispute relating to the issue of life expectancy. All of the experts agree that because of the severity of the injury suffered, Jesse has a greatly reduced life expectancy. The plaintiffs submit that the calculation of damages ought to be based on a life expectancy of 25-30 years (ie. a further 22-27 years) , while the defence submits a range of 20 years is most appropriate (ie. a further 17 years). [115] The starting point is the evidence of Dr.

Strauss, a statistician who directs the University of California Life Expectancy Project. That project has been ongoing since 1980 when Dr. Strauss' predecessors began to receive data concerning developmental disabilities. At this point in time, the data base contains information on some 194,168 individuals. The data base is recognized as being the largest and most comprehensive of all such data bases, and has been the principal source in more than 100 scientific reports and articles published by the study group. [116] Relying on a questionnaire completed by Dr. Hill, in which he outlined the essential elements of Jesse's functional capacity, Dr. Strauss has calculated Jesse's life expectancy at 17.8 further years (assuming he cannot consistently lift his head while lying prone) and 22.1 further years (assuming he can lift his head in the prone position). As Dr. Strauss explained, the research to date supports the conclusion that there are several key predictors of the mortality rate, one being the individual's ability to mobilize and lift his head, while in a prone position. Dr. Strauss conceded that his estimate of future life expectancy might be on the generous side since he did not consider the "episodes of chest infection" which Jesse suffers from time to time, as noted by Dr. Hill. He conceded that respiratory infections are one of the most common cause of death in

children with disabilities. [117] By the same token, in cross examination, Dr. Strauss also conceded that in predicting Jesse's life expectancy, he used a "life table" method based on the average of a hypothetical group. He agreed that this process is very similar to that which an insurer would use to determine an average risk and cannot be used to support an assumption about what will happen to a specific individual in the group. Indeed he admitted that even amongst the most disabled children, a number will live much longer than the projected average and will even live into middle or possibly, old age. [118] In cross examination, Dr. Maureen O'Donnell, the developmental paediatrician who testified on behalf of the defence, conceded that while the literature (including the California studies) supported a life expectancy of less than 20 years, she believed a range of early adulthood (20-25 years) was more appropriate, given the fact that (i) Jesse lived with a loving, knowledgeable family intimately involved in his care, (ii) that he was a Canadian citizen and therefore lived in an environment where medical services would be available to him and finally; (iii) that further medical technologies had been developed since the California studies first began and could indeed be expected to be forthcoming in the future. [119] In his report, (Ex. 7, Tab 4) Dr. Allan Hill, the paediatric

neurologist who also testified on behalf of the defence, opined that it was probable Jesse's life expectancy would be "to approximately 20 years of age". In cross examination, he explained that he meant "a couple of years either side of 20" and that while he would be surprised, Jesse might survive to age 25. As he put it "anything is possible". [120] In his report, Dr. Hahn opined that " I do not think it likely that Jesse will reach young adulthood, though not impossible." At trial Dr Hahn adopted Dr. O'Donnell's opinion that Jesse's life expectancy was indeed in the range of early adulthood (20-25 years). He acknowledged that his testimony, at least on its face, appeared to contradict the opinion contained in his written report. He agreed that at the time he wrote his report he had conducted a full assessment of Jesse in his parents' home and that there was no information he was unaware of nor any changes in Jesse's condition since his authoring of the report which would account for his apparent change in opinion. Nevertheless he insisted that all along he had thought of Jesse as either reaching very late adolescence or young adulthood. He noted that in medical terminology "young adulthood" includes a period ranging up to age 25 years. [121] While there is no significant dispute, the evidence is essentially to the effect that Jesse's total life expectancy is in the range of

20-25 years-with Dr. Hahn and Dr. O'Donnell adopting the 25 year figure as the top of the range, while Dr. Strauss and Dr. Hill are at the lower end of the range. I am satisfied (as the physicians have testified) that the California study figures are not necessarily reflective of what might be expected for this child, in British Columbia, enjoying superior day-to day care and medical benefits. The 25 year figure goes well beyond the predicted range articulated in the literature and specifically reflects the superior parenting and medical care which Jesse enjoys, coupled with the expectation of some future technological advances. In my view, however, there is no strong evidentiary foundation for any finding of life expectancy beyond 25 years. The evidence supports the conclusion that 25 years represents the top end of the range. Accordingly, for the purposes of this judgment, I find that Jesse's life expectancy is a total of approximately 23 years, meaning that there is an expectation Jesse will live another 20 years from trial. 7.0 COSTS OF FUTURE CARE: 7.1 Accommodation [122] Ms. Landy has set out various recommendations for various housing modifications, which modifications Mr. Evan Stregger of Costex Management Inc. costed out at $159,515 for renovations and $145,000 for new construction. While the defendants have not presented any alternate cost estimates, they question the

necessity for a variety of the costs including: an ensuite bathroom for Jesse, the need for a hydrotherapy tub (which may overstimulate him and trigger spasms), the need for both a large storage area, and the need for a separate exercise area. Other than the exercise room, I agree that these items do not appear to be necessary. Other items such as the larger mirrors, lowered kitchen cabinets and wiring for assistative electronic devices would also appear to be unrelated to Jesse, given his limited functioning. Deducting approximately $30,000 from the cost of new construction, results in a claim of approximately $115,000 which I will award as the appropriate amount under this head. 7.2 Attendant Care: [123] While it is agreed that Jesse is and will remain severely disabled and will always be totally dependent on his caregivers, the real issues concerns the amount of caretakers' time which is required, whether large amounts of that care can be provided either within the school system or through publicly-funded services, whether any night-time care is required and finally, the caretakers' required level of education and training and their resulting cost. 7.3 Attendant Care from now until Age 6: [124] Ms. Janice Landy, an expert rehabilitation consultant, testified on behalf of the plaintiffs. Her opinion is essentially that from trial until age 6, Jesse requires 40 hours of care

during the weekdays (8 hours per day) plus an additional 4 hours daily for evening care and 8 hours of weekend care. [125] At present, the Ministry of Children and Families funds the Guerineau's own hiring of Ms. Guerineau's sister, Virginie Olic, who works 8 hours a day, plus an additional 12 hours per week-which the Guerineaus divide between Thursday evenings and all day Sunday, when Ms. Guerineau's second sister, Melanie Medonic, cares for the child...Accordingly Ms. Landy's plan offers an additional 16 hours per week, largely supporting the family in their day to day care of the child. [126] Ms. Shulstad, also a rehabilitation consultant, testified on behalf of the defence. She essentially adopts Dr. O'Donnell's opinion that during the time frame from trial until age 4, a child would typically be cared for by a babysitter or nanny or a day-care facility during the working day and that accordingly the in -home support costs should be limited to those of "respite care" of approximately 60 hours per week at $15 per hour. Ms. Shulstad accepts Dr. O'Donnell's opinion that no night-time care is required, based on the assumption that Jesse indeed sleeps through the night. Further she opines that "flexibility and continuity of care can best be delivered by a nanny", whom she characterizes as an "unregulated care provider" who would be taught the necessary specific delegated tasks

by a Registered Nurse. [127] In my view, it would be a complete fallacy to consider this portion of the claim as simply limited to an amount to supplement the care or the costs which a parent would otherwise provide or finance for a well-bodied child who would likely attend day-care while his parents went to work. By virtue of Jesse's condition, the Guerineaus are essentially providing 24 hour care to the child, something well beyond what any parent would experience with a pre-school child. [128] They have specifically structured their working lives such that they work back to back shift work, with the result that one or other of them (or the caretaker) is within Jesse's earshot, close at hand and capable of addressing a medical emergency at any time of day. Ms. Guerineau works full-time as a bookkeeper clerk. Mr. Guerineau works as a forklift operator. He works the night shift, returning home at approximately midnight or sometimes as late as 2:00 am. Ms. Guerineau who either remains awake or sleeps lightly, can then sleep soundly. On his arrival home, Mr. Guerineau often attends to Jesse and if he vomits, attends to cleaning up the baby and the bed linen. His wife wakes at 5:00-5:30 am and leaves for work, so that she can arrive home earlier in the day and relieve her sister. Mr. Guerineau then rises at 6:30 am, attends to Jesse's needs, readies his daughter for school, and

attends to Jesse's morning feed, before Ms. Olic arrives at approximately 10:00 am. He leaves for work at 2:45 pm and Ms. Olic is left to care for the baby alone until approximately 5:30-6:00 pm. Ms. Guerineau then resumes caring for the baby until she goes to bed late, shortly before her husband's arrival home from the night shift. [129] This situation is untenable. Since there are no other affordable options, this regime has remained in place. In my view, it has exacted great costs for the family. The Guerineaus have been robbed of the opportunity to enjoy time together as a couple. Nor have they had much opportunity to interact as a family. Their 8 year old daughter Kelly has essentially been shunted to the side. Her evenings after school are spent either observing her mother care for Jesse or performing the child care duties herself. Her extra curricular activities have been reduced to a single dance class on Saturday mornings, which she often misses or is late for as the family struggles to cope with Jesse's condition. While the Guerineaus have tried valiantly to provide her with the necessary attention and emotional support, this child's needs have been overshadowed if not displaced by her brother's more pressing needs, with the result that negative dysfunctional behaviours have emerged. More recently she bit another school mate and was suspended from school for a

period. [130] While the medical evidence is to the effect that Jesse sleeps through the night, I am satisfied that in fact, this is not the case. He is not a sound sleeper. He is often coughing or agitated during the night (due to recurring chest infections) and is therefore at almost constant risk for night time vomiting-a risk for which both parents share a heightened awareness. [131] Both Mr. and Mrs. Guerineau testified that they considered Jesse underweight and that he would profit from the addition of a night time feed. However, they said they could not proceed with such a feed at 12:00 pm, since that would heighten the risk of night-time vomiting-a risk they could not deal with, given their already limited sleep. While Jesse is very small, I heard no medical evidence that he was other than well-nourished or that there was indeed some need for a night-time feeding. [132] Regardless of this finding, I am still persuaded that there is evidence to support the finding that from time to time, Jesse will indeed require a night-time caregiver. While I accept the preponderance of the medical opinion is that Jesse should undergo the surgical insertion of a J-tube at some point in the near future and while I find that such a tube will in all likelihood be inserted in the near future (despite the Guerineaus' insistence to the contrary), it remains the case that even once the J tube

is inserted, trouble free nights cannot necessarily be counted on. As Dr. Selby notes in her report, while the fear of night-time vomiting may be alleviated, children such as Jesse, particularly those with cortical visual impairment (and therefore no capacity to clearly distinguish night and day) can be expected to display disrupted sleep patterns. I expect this will continue to be the case during Jesse's childhood and adolescent years, with perhaps some abatement as he matures. Further, there will continue to be periods when Jesse suffers one of his recurrent chest infections and again, he cannot be expected during those periods to sleep through the night. [133] Accordingly, I reject the assumption that a notional 50 hours of "respite care" over and above what would normally be day-care hours is sufficient to meet this child's needs. In my view, this assumption ignores the full breadth of the special care which is required to cope with Jesse' s pressing disabilities. Further, the assumption ignores the fundamental underlying notion that an award for damages for future care is designed to compensate the plaintiff and his parents and essentially return the family to the position it would have been in, but for the injury suffered. [134] In the end result, I find that the structure of care outlined in the Landy report (that is 8 hours a day, Monday to Friday, plus 8 hours on

Saturday, 4 hours on weekend) plus an additional 4 hours per day of night-time care) is both reasonable, appropriate and medically necessary. 7.4 Attendant Care - Age 6-21: [135] After Jesse reaches school-age, there is no real dispute between the experts concerning the required care except that Ms. Landy's recommendation is based on 3 hours of school per day, whereas Ms. Simpson and Ms. Shulstad assume attendance at school for 6 hours per day. Ms. Landy bases her recommendation on the assumption that Jesse will have neither the physical stamina nor the endurance to tolerate a full day at school. Ms. Shulstad's and Ms. Simpson's recommendations are based on Dr. Joschko's opinion that, Jesse, like other children with physical and mental disabilities, will be able to attend school for a full day. [136] There was no medical evidence to support the notion that Jesse will not be able to attend school. While there is an expectation that he will spend some of that time sleeping, the evidence is that a disabled child is apparently easily accommodated within the school's physical plant where the necessary arrangements are made to find an appropriate room for the child to sleep or eat or otherwise be attended to. [137] My sense of the evidence was the plaintiffs' concern that in the future the public school system may not be sufficiently funded to allow Jesse's special needs to be met.

Dr. Lee, the child psychologist retained by the plaintiffs, testified that in recent years he has experienced a number of cases in which funding for disabled children within the school system has been cut back in various school districts. He testified that while the school districts have an obligation to develop an individual education program (IEP) for each such child, and while such IEP's are indeed developed, there is very little evaluation of whether the objectives of the IEP's are actually being met in most cases, for simple lack of funding and personnel. He testified that more recently, various School Districts are attempting to set up segregated classrooms for disabled children in order to more efficiently share the resources financed by the block funding available within each District. [138] He was familiar with one case in which a private attendant was allowed to work within a school, caring for a particular child-that being a case where the parents paid the funds to the School District which in turn hired a union member for the specific attendant role. [139] While I accept the defence theme that some measure of public funding will always be available for children as profoundly disabled as Jesse, in today's climate, I am not confident in assuming that that funding will necessarily be as fulsome or as extensive as it has been in the past. [140] Accordingly, outside of

the assumed 3 hours per day which he will spend in school, I find that Jesse will require an additional 9 hours of attendant care from Monday to Friday , rather than the 6 hours assumed by Ms. Shulstad and Ms. Simpson. Even if Jesse does ultimately spend an additional 3 hours per day at school, I believe it is more realistic and more prudent to structure this award on the assumption that that additional 3 hours will require private funding-either because Jesse is ill and not able to attend school on a substantial number of the scheduled days, or because the school itself may not have the necessary resources. In my view, structuring those 3 additional hours per day as "private attendant care" hours removes the need for Jesse or his family to depend wholly on the school system and further provides the necessary flexibility to allow for attendant care on the days he is ill and unable to attend. [141] In addition, Jesse will require an additional 10 hours of care over the weekend (either on Sat or Sunday or a combination of both days), for a total of 55 hours of care per week. This structure will be in place during the 40 weeks of instructional time each year. [142] During the other 12 weeks of non-instructional time each year, I find that Jesse will require 10 hours of care daily (Mon to Friday) plus an additional 10 hours over the weekend. 7.5 Attendant Care - Age 21

onwards: [143] There is no dispute that once he has completed his educational program and presumably lives outside his parents' home, Jessie will require 24 hours of care daily, based on live-in care for 12 hours per day. 7.6 Required level of Training of Attendant: [144] The larger issue concerns the necessary training level for the caregiver(s) who will attend to Jesse. [145] Because Jesse is a child who is completely dependent on others and presents a number of risk factors, Ms. Landy recommends that his caregiver either be a licensed practical nurse or a certified home support worker with the medical training and background necessary to meet his special needs. Further she recommends that the Guerineaus hire such an individual through the Paramed Home Services agency at an hourly rate of $28.25 per hour. While Ms. Landy acknowledged that there are other agencies which also hire such individuals, she testified that since Paramed currently holds the Provincial Government contract for care in the community, it is widely regarded as the agency with the largest pool of persons with the necessary training and background required to deal with children with severe disabilities. [146] The defence position is essentially that the services of an agency are not required. This position largely rests on the evidence of Dr. Joschko, Dr. O'Donnell, Ms. Shulstad and Ms. Simpson, that there

is no particular background needed for caregivers who are able to attend to children like Jesse. Rather they say the most important factors are the compassion of the caregiver and his/her willingness and ability to learn how to care for such a child. The defence submits that a privately hired caregiver with no training could be hired at an hourly rate of $14.50 per hour (which including UIC, WCB and CPP contributions would equal $17.20 per hour). That individual would then be trained by a Registered Nurse to perform the specific tasks involved in Jesse's daily care. [147] While Ms. Simpson made no allowance for the costs of the RN's involvement, (except as a case manager), she assumed the teaching and supervision of the caregiver would all be available through a government home care nurse, although there was no evidence to support that assumption. She acknowledged that any ongoing supervision of the nurse would not necessarily be provided by such a nurse. Ms. Shulstad also acknowledged that for such a system to work, the family would have to hire a Registered Nurse to act as the case manager. In her capacity as a case manager, the nurse would recruit, hire, train and supervise the personnel. The defence reports do not provide for any costing for either a case manager or a supervisory nurse to perform such a function. [148] In the end result, in the case of this family, I find

that it is both medically necessary and appropriate that the Guerineaus have at their disposal the full gamut of support provided by either a licensed practical nurse or a home care worker hired and trained as necessary by a private agency such as Paramed at a cost of $28.25 per hour. In my view it is unreasonable to expect that this family will undertake the difficult task of recruiting, screening, hiring, training and supervising staff as well as coping with the stress of finding replacement staff at those times when staff are ill or otherwise unable to attend. [149] This family has been overwhelmed by the burden of caring for Jesse. While family members have indeed undertaken that task to this point, the role has become increasingly complex. Ms. Olic, who has no special training, admitted she no longer feels competent to address Jessie's complex needs. All of these stresses can be addressed and coped with within the structure of a specialized agency. In my view Paramed will best meet the Guerineaus' needs in a professional and consistent manner, with the least stress to the family. [150] Applying the test set out in Thorton v. Board of School Trustees, I am satisfied that this expense is one that a reasonably minded person of ample means would be prepared to incur in caring for Jesse. The family, in my view, is entitled to delegate the task of selection and training of

caregivers to an agency and to rely on the agency to provide the necessary and appropriate personnel. There can be no suggestion, in my view, that financing attendant care in this fashion, amounts to a squandering of funds, such as to not meet the necessary legal test. 7.7 Equipment- Bathing and Personal Care; Daily Living: [151] I do not intend to address each item in the Landy report. I will award the amounts necessary for the purchase of the items set out in that report, save for the toileting chair which I agree is a speculative item. There is no evidence to suggest that it is at all likely Jesse will develop any kind of bowel control, let alone a toileting schedule in the future. 7.8 Educational Support: (a) Preschool: [152] During his pre-school years, Ms. Landy recommends that Jesse attend preschool three days per week and be provided with educational support for 2.75 hours per day. Having heard the evidence of all the experts involved, I am satisfied that at least before a disabled child reaches school age in the Lower Mainland of B.C., his needs for a fully funded 1:1 worker is provided through the Ministry of Children's "Supported Child Care Program". I will make no award for such additional educational support. (b) Kindergarten/ Grades 1-12: [153] While I accept the plaintiffs' submission that it may well be necessary at some point to retain a special education

assistant to attend in Jesse's classroom to provide him with the support which may not be available through the Ministry of Education, the evidence here is not sufficiently strong to support the conclusion that the hiring of such an individual could be arranged within the school district's teachers' collective agreement and further that the school board would necessarily tolerate what would effectively be a two-tier situation (that is with some disabled children being privately supervised while others were not). Nevertheless, as in Krangle v. Brisco 2000 BCCA 147 (BCCA), I find that the evidence of Dr. Lee at least justifies the award of a contingency fund to cover the possibility that private funding may indeed be required to supplement the services generally available to special needs children in the public school system. The award ought to be calculated based on 10% of the present value of services at a cost of $15,000 in the kindergarten year plus $17,500 per year from age 6 to 21, assuming a total life expectancy of 23 years. 7.9 Clinical Case Management: [154] Ms. Landy recommends that Dr. Douglas Lee, provide the Guerineaus with ongoing psychological consultation and clinical case management. She recommends 6 hours per month in the first year, 4 hours per month for the next 4 years, and 25 hours annually in next years, for the remainder of Jessie's life. [155] There is

no question, as Dr. Joschko concedes, that this family very much requires some counselling and psychological support. However, like Ms. Simpson, I find it difficult to mix the concept of case management support and clinical psychological counselling support as set out in Ms. Landy's report. While Dr. Lee might well be the individual retained by the family to play this dual role, I believe it is more likely that some other member of Jesse's care team will assume this role. [156] I adopt the global figure of 150 hours of counselling for the family, and 100 hours of counselling for Jesse, as set out in the Simpson report. Further I adopt Dr. Joschko's recommendation of a contingency fund of 8-12 hours per year to cover the costs of school related psychological consultation in the event that this is not provided by the local school district. [157] Further, I accept that some case management services will be required -as intensively as 4 hrs per month in the first year, 12 hours per year in the second year and then 6 hours per year in the years thereafter. [158] I will assume the provision of case management and psychological services with the frequency and at the rates provided in the Simpson report. 7.10 Physical Therapy and Occupational Therapy: [159] As I did earlier, I reject the plaintiffs' submission that any additional support for physiotherapy and occupational therapy is

required while Jesse attends pre-school. I am satisfied the necessary care is presently provided through the Step by Step program and through Sunny Hill hospital. [160] However relying on the evidence of Dr. Hahn and Dr. Selby, I find there is ample evidence to support the conclusion that after a disabled child reaches school age, it becomes far more difficult to obtain the necessary level of physical and occupational therapy support or at least that the level of therapy provided within the school requires supplementation. [161] I accept the evidence of both Drs. Hahn and Selby that the public services are very much strained. In his report, even Dr. Joschko questions the ready availability of physiotherapy within the school system. He notes that such care may be available through the Ministry of Children and Families' "services to the mentally handicapped". However as Dr. Hahn notes, the Guerineaus "should not have to plead with any Ministry or Agency for services that should be funded in a planned, proactive way." No one was able to say whether Jesse's receipt of an award in these proceedings would negatively affect his eligibility for participation in such a program for publicly funded services. [162] I am satisfied that with regard to these forms of therapy, the public system is indeed strained. Jesse and his family are entitled to have these services in place, without

regard to the vagaries of the publicly funded system. Accordingly, I award an amount sufficient to pay for 40 hours of physical therapy per year while Jesse is in school (to age 21yrs) followed by 20 hrs annually for the balance of his life at an hourly rate of $75 per hour. [163] Regarding occupational therapy, I award an amount sufficient to provide him with 20 hours of occupational therapy annually (including home and school visitations), while he is in school (to age 21), followed by 12 hours annually for the balance of his life, at a rate of $75 per hour. 7.11 Pharmaceutical needs: [164] I adopt the amounts set out in the Landy report. 7.12 Transportation: [165] I award the amount set out in the Landy report. With all due respect, Ms. Simpson's evidence concerning the likely trade-in value of an adapted used vehicle struck me as somewhat speculative and unreliable. 7.13 Cellular Telephone: [166] I award the amount set out in the Landy report. 7.14 Respite Services: [167] There is some degree of overlap in the Landy report regarding respite care. As I noted earlier she recommends the provision of attendant care for 1 day weekend care. At page 28 of her report, she also recommends respite services for 20 days annually, which I assume includes to some degree some of the weekend care provided by the attendants. I therefore award funding for respite care from the present date

until Jessie is 21 years old at the rate of at the rate of $240 per day for 20 full days LESS the weekend care referred to earlier in these reasons. 7.15 Associated travel costs for care provider. [168] I award the sums set out in the Landy report. 7.16 Membership in Cerebral Palsy Association. [169] I award the sum set out in the Landy report. 8.0 FUTURE LOSS OF INCOME CLAIM: (a) Level of education: [170] Mrs. Guerineau completed her high school education while Mr. Guerineau did not. As a couple, they impressed me as extremely hard working, directed individuals, very much focused on their children's success. I have no difficulty assuming that but for his injury, Jesse would likely have completed high school and some post secondary non-university education of at least one year in duration. (b) Lost years deduction: [171] Adopting that assumption, the plaintiffs submit that Jesse's future loss of income claim ought to be calculated on the basis of a "lost years deduction"-that is a deduction of approximately 50% for the lost years, representing the proportion of Jesse's income he would have spent on personal expenses had he been capable of working during those years. In the Taunton report, the lost years deduction is calculated by multiplying the average BC male's labour market contingencies adjusted income by the percentage of that income which is spent by the average male on

food, shelter, clothing, personal and health care and half of private and public transportation. The share of these expenses is then "grossed-up" by the average tax expense incurred by members of the cohort. The difference between the plaintiff's survival rate and the survival rate for BC males with normal life expectancy is multiplied by the total annual expenditure on personal living expenses and taxes. The present value of the lost years deduction is roughly 50% of the total lost income award. [172] The defence submits that the plaintiff should be awarded only that proportion of income which would have been saved in the lost years. In Table 7 of his report, Mr. Hildebrand of Columbia Pacific Consulting sets out the after-tax expenditure allocation for one person households, organized by income quintile. According to his data, the majority of such households save none of their income. Only those in the highest income quintile allocate any of their after tax income-an average of 15.8% - to savings. While the lost years deduction ought to be at least 85%, for the purposes of this case, the defence submits that a more conservative lost years deduction of 75% would be appropriate. [173] I am persuaded that the case authorities essentially support the plaintiff's approach to the lost years deduction. In Toneguzzo-Norvell v. Burnaby Hospital, (1994) 1 SCR 114, at para 31, the

Supreme Court of Canada concluded that "logical and functional considerations combine to suggest that it is appropriate to make a deduction for personal living expenses from the award for lost earning capacity" and upheld the 50% deduction imposed by the B.C. Court of Appeal. In her reasons, McLachlin J. (as she then was) recognized that "in order to earn an income one must live and incur the attendant expenses" and that not deducting living expenses would put the plaintiff in a better position than he would have been in had he actually earned the income. [174] The defence position's "savings approach" was adopted by the Manitoba Queens Bench in Webster v. Chapman (1996) 9 W WR (2d) 1 where the Court refused to allow compensation for loss of income in the lost years for a plaintiff who would not have saved any of her income. However the drastic deductions seemingly mandated by the "savings approach" have not been made from most damage awards, even in Manitoba. (ie see for example Bauer v. Seager (2000) M.J. NO 356 (Q.B.) Indeed , more recently the "savings approach" was expressly rejected by the Alberta Court of Appeal in Duncan Estate v. Baddeley (2000) 192 DLR (4th) 53. There the Court accepted the "available surplus approach" in which "the amount deducted must reflect a realistic assessment of the expenses the individual, at that income level, would have spent in order to

live". [175] Since Toneguzzo, the standard deduction has been approximately 50%. The Court will deviate from this standard where the evidence indicates that more of the plaintiff's income would have been spent on personal expenses, as it did in Brimacombe (supra), in which a 2/3 deduction was imposed. [176] In this case, I am satisfied that the facts support a 50% deduction. The Taunton report estimate of pre-tax spending for personal living expenses include the costs of food, shelter, clothing, health care and half the transportation costs. Although the categorization of living expenses is somewhat arbitrary, the overall approach appears reasonable. No significant non-discretionary costs appear to have been excluded form the calculations. Taunton's estimation of expenses is supported by the after-tax allocation chart (Table 7) contained in the Hildebrand report. According to that Table, a one person household spends an average of 49% to 66.7% (depending on their quintile) of their after-tax income on the necessities identified in that report. Given that Mr. Taunton has based his calculations on pre-tax income, I am satisfied that the Taunton and Hildebrand estimate of the percentage of income spent on personal living expenses are comparable. (c) Multiplier: [177] One last issue remains, which is the applicable multiplier to be adopted in calculating the present value of the

loss of income claim. [178] The multipliers adopted by each of the economists is somewhat different. I should note here that neither of the parties' economists appeared at trial for cross-examination. I am essentially left with their reports, which were touched on briefly in closing submissions. [179] Mr. Taunton has prepared tables which set out a year by year analysis of the average income of males who have completed various levels of education. For each year, deductions are calculated for a number of negative contingencies, based on the average risks faced by B.C. males including: non participation in the labour force, unemployment, part-time employment and premature death. Lost income is calculated by subtracting the risk of the first three contingencies (labour market contingencies or LMC) from the total employment income to obtain a LMC-adjusted income, then subtracting a survival contingency percent to obtain the average mortality-adjusted income. The average mortality income is then reduced by 2.5% (pursuant to the Law and Equity Act Regulations), yielding the present value of the future lost income. [180] Rather than adding the current value of lost income for each year the plaintiff would have been in the workforce, Mr. Hildebrand provides income multipliers which indicate the present value of a $1000 income in any year. These multipliers incorporate the 2.5% discount

mandated by the Law and Equity Act and the normal survival risks for Canadian males. They do not apparently include adjustments for labour market contingencies. Rather they apply to annual income figures which have already been adjusted for such contingencies. [181] In closing submissions, defence counsel characterized the multiplier used in the Hildebrand Report as the "mortality ratio method" although there was no explanation of the method, nor the reason for this characterization. The report itself does not appear to make an explicit reference to the mortality ratio method. [182] As is perhaps evident, there is very little material before the Court to assist in distinguishing between the multiplier approach adopted by Mr. Hildebrand and the year-by-year calculations employed by Mr. Taunton. [183] Defence counsel relies on Brimacombe (supra) as authority for the proposition that the "mortality ratio method" ought to be applied here. However there is no evidence before me that that was the method adopted by Mr. Hildebrand in that case. In its reasons in that case, the Court indicates a preference for the "mortality ratio method" over the mortality rates calculated by another expert. Since the methods employed in the case at bar have not been compared with those employed in Brimacombe, I am reluctant to rely on the reasons in Brimacombe as authority for the proposition that

that is the preferred method of calculation. [184] In any case, I note that the final calculations proposed by both Taunton and Hildebrand are very similar, that is within 7% at each education level. The calculation of the future income claim is not a pure arithmetical exercise. Rather the exercise is an assessment of damages. Thus, in the end result, since the selection of one expert's opinion over that of another on this issue will have very little impact on the damage award, and since no material has been provided in distinguishing between the two approaches, I intend to simply adopt the Taunton approach since I have largely relied on that report. [185] Thus for the purposes of calculating the loss of future income claim I assume (i) that Jesse has a further life expectancy of 23 years; (ii) that he would have completed high school and a post secondary education of more than one year in duration ;(iii) that the lost years deduction of 50% is applicable and that (iv) the Taunton report multiplier shall apply. 9.0 IN TRUST CLAIM: [186] Here "in trust " claims are advanced on behalf of each of the Guerineaus as compensation for the services rendered by them over the past three years. [187] The plaintiffs position is that since each of the parents has been directly involved in Jesse's care, relieved only by family members who have been paid $10 per hour under a Ministry of

Children 's At Home Care program, each of them ought to receive an in-trust award. Relying on the decision in Brennan v. Singh (March 4, 1999) Vancouver Registry No. B961315, in which Harvey J held that the damages ought to reflect the wage of the substitute caregiver, the plaintiffs say that here, assuming each of the parents has delivered roughly 8 hours of care daily, and adopting a $10 per hour rate, each of their claims should be valued at $87,000. They submit that a reasonable award would be in the order of $75,000 each. [188] The defence position is that $75,000 per parent represents an over-estimate of the actual care provided by each parent on a daily basis to this date. Both of the Guerineaus have worked full-time over most of the last 3 years, with 8 hours of support from the At-Home program from Monday to Friday, with respite care one evening per week and one day on the weekend. Further the defence notes that while some of the time the Guerineaus have spent with Jesse amounts to actual compensable care, much of the care would form part of the normal parental duties assumed by a parent caring for a very young child. Accordingly the defence position is that the Guerineaus should effectively divide a $75,000 award between them. [189] While I accept that parents usually spend a good deal of their free time caring for a child in early infancy, these parents have

virtually spent all of their free time over the last three years caring for a child who is often very ill or medically vulnerable. While something in the order of 5 hours per day has spent by each parent intensively caring for Jesse during weekdays, the weekend care is more likely 6 hours each per day. [190] In the circumstances, I believe a fair award to be $50,000 for each parent. 10.0 CONCLUSION: [191] There are a number of outstanding matters which remain to be addressed-specifically the award for tax gross-up on the future care award, investment management fees, taxable costs and the approval of legal fees. The parties have agreed that these matters are best addressed once the main award is finalized. I will leave it to counsel to calculate the awards set out herein. If they are unable to resolve the balance of the issues by way of agreement between themselves, I invite them to contact the Registry to arrange dates for further submissions on the outstanding matters. "The Honourable Madam Justice Boyd"