In April 2019, an Ontario civil jury delivered an $11.5 million verdict against a community obstetrician for substandard management of a high-risk twin pregnancy. The case was Woods v Jackiewicz. The plaintiff was Kelsey Woods, who was born severely affected by cerebral palsy after a twin-to-twin transfusion syndrome (TTTS) was missed and her premature delivery by emergency Cesarean section at 27 weeks resulted in catastrophic brain injury. I represented Kelsey and her family at trial.
The defendant obstetrician appealed. In July 2020, the Ontario Court of Appeal unanimously dismissed the appeal and upheld the jury’s verdict.
The case is worth setting out in some detail. It illustrates the kinds of issues that arise in a complex obstetric malpractice trial and how an Ontario civil jury approaches them.
The clinical background
Kelsey’s mother, Ms. Booth, was pregnant with twins in 1991. She attended the defendant obstetrician for routine antenatal care. On July 5, 1991, she presented to him on an unscheduled basis with severe abdominal pain and excessive weight gain. He sent her home to rest.
Her symptoms worsened. Two days later, on July 7, she presented at Niagara Hospital and was immediately transferred by ambulance to McMaster Hospital. By the time she arrived, her cervix was dilated to two or three centimetres. The babies were delivered by emergency Cesarean section at 27 weeks. As a result of the prematurity, Kelsey sustained a severe brain injury that became cerebral palsy.
What the medicine showed
Two pieces of medicine were central to the case.
The first was symphyseal fundal height (SFH), a basic measurement of uterine size used to track fetal growth. Between 16 and 36 weeks, fundal height in centimetres roughly corresponds to gestational age in weeks. The defendant did not measure or record SFH at any of Ms. Booth’s antenatal visits except the last one. In a twin pregnancy, where rapid uterine growth or asymmetric growth is a critical warning sign, this was a significant omission.
The second was twin-to-twin transfusion syndrome. TTTS is a complication of monochorionic twin pregnancies in which blood is shunted unevenly between the twins through shared placental vessels. The recipient twin gains volume; the donor twin is starved. Without treatment, severe TTTS carries a high risk of death or neurological injury for both twins. The standard treatment in 1991 was amnioreduction, the removal of excess amniotic fluid from the larger sac to relieve pressure on the smaller twin and prolong the pregnancy.
The defence’s theory at trial was that amnioreduction was not widely available in 1991 and that referral to a perinatologist would not have changed the outcome. The plaintiffs’ theory was that prompt referral on July 5 would have led to amnioreduction, prolongation of the pregnancy, administration of a full course of antenatal steroids for fetal lung maturity, and the avoidance of Kelsey’s brain injury.
The trial
Civil trials in medical malpractice are vigorously prosecuted and defended. Physicians are foremostly defending their reputation. They are also extremely well protected financially by the Canadian Medical Protective Association, the national defence association for Canadian physicians, which means the doctor is virtually never personally on the hook for any judgment if found negligent. The reputational consequences, however, are real, and CMPA-defended cases are typically litigated to trial with no offers to settle.
This case followed that pattern. It went through nearly a decade of pre-trial litigation, culminating in a three-week jury trial in 2019.
The damages had been agreed before trial at $11.5 million, contingent on the jury finding negligence. The jury was not told what the case was worth. Neither was the trial judge. That information was disclosed only after the verdict.
The trial was contested on two fronts. The legal issues were decided by the trial judge in voir dire, in the absence of the jury. The factual issues, including standard of care, breach, and causation, were left to the jury.
Key procedural rulings
Several pre-trial rulings shaped the trial. Three are worth noting.
Number of experts. The plaintiffs sought to call three obstetric experts plus a pediatric neurologist. Under the Evidence Act, leave is required to call more than three experts. The trial judge restricted the plaintiffs to the statutory maximum, requiring the case to be tried with one fewer obstetric expert than planned (2019 ONSC 1930).
Demonstrative aids. The plaintiffs proposed using anatomical and procedural illustrations to help the jury understand the medicine. The defence opposed their use as advocacy. The trial judge admitted them, with a memorable line: “Judges are gatekeepers, not equalizers” (2019 ONSC 2069).
Defence expert impartiality. One of the defence’s principal obstetric experts had previously been a client of defence counsel in unrelated litigation and had a history of defending the defendant doctor in prior proceedings. The trial judge declined to exclude him for bias but did so with reservations on the record, noting concern that the witness’s history “might colour his opinions” (2019 ONSC 2178).
The trial judge also declined a defence request for an adverse-inference instruction against the plaintiffs and refused a defence remedy after the plaintiffs’ closing address (2019 ONSC 2305; 2019 ONSC 2334).
The verdict
After approximately a day and a half of deliberation, the jury returned a unanimous verdict in favour of the plaintiffs.
On standard of care, the jury identified three specific failures by the defendant:
- He failed to measure and record SFH until the last visit on July 5.
- He failed to do an ultrasound between 26 and 28 weeks.
- On the July 5 visit, given the change in cervix, the excessive weight gain, and the severe abdominal pain, he failed to refer Ms. Booth to a perinatologist or to consult with one.
On causation, the jury found a causal link between the breach of the standard of care and Kelsey’s brain damage. In their words: “We recognize that the breach of the standard of care may not be the sole, exclusive, or entire cause of the brain damage. However, we do believe there is a causal link.” Specifically, but for the failure to refer, Ms. Booth would have received specialist perinatal care in time, including an earlier diagnosis of TTTS, amnioreduction as treatment, and a timely full course of steroids to improve lung development.
Damages of $11.5 million were entered in the judgment.
The appeal
The defendant appealed on several grounds, the most pointed of which was that the absence of a witness from McMaster Hospital to confirm that amnioreduction was being performed there in July 1991 was a fatal gap in the plaintiffs’ causation case.
The Court of Appeal disagreed. In Woods v Jackiewicz Estate, 2020 ONCA 458, a unanimous panel held that the jury’s verdict was reasonable on the evidence. Two of the plaintiffs’ obstetric experts, Dr. Barrett and Dr. Farine, had testified that amnioreduction was a straightforward procedure in 1991, well within the technical capability of any maternal-fetal medicine specialist. Dr. Barrett described it as “standard” treatment for TTTS in that era and said the team at McMaster “did amnios all the time.” If McMaster could not perform it, the patient could have been transferred to Toronto. The defence’s contrary expert evidence was a matter for the jury to weigh, and the jury was entitled to reject it.
The appeal was dismissed and the trial verdict upheld.
What the family said
In an interview with the St. Catharines Standard shortly after the verdict, Ms. Booth, Kelsey’s mother, said something true about the practical realities of malpractice litigation in Ontario:
“It is very difficult to win a medical malpractice suit in Ontario, and it would have cost us hundreds and hundreds of thousands of dollars in lawyer fees at $600 an hour. We didn’t have the money so we agreed to share a portion if we won.”
That observation, about the financial barriers that keep meritorious medical malpractice cases from being brought without contingency-fee representation, is worth pausing on. It applies to most families I see.
Why this case matters
For obstetric practice, the case is a reminder that the basic elements of antenatal care, including SFH measurement, regular ultrasound monitoring of high-risk pregnancies, and timely escalation to subspecialty care when warning signs appear, remain the foundation of safe practice. The failures here were not exotic. They were routine elements of competent care that were not done.
For families dealing with a child diagnosed with cerebral palsy after a difficult pregnancy or delivery, the case is one example of what is sometimes possible. Most cases of cerebral palsy are not the result of negligence. When they are, the case is rarely simple. But where the standard of care has been breached and that breach has caused the harm, compensation that reflects the lifetime cost of care is achievable.
For more on birth injury and cerebral palsy claims, see the Birth Injury practice page. For a broader overview of the legal process, see Suing for Medical Malpractice in Ontario: What You Need to Know.
In June 2020, I appeared on the Inside Medical Malpractice podcast with Chris Rokosh to discuss the trial and the approach to a jury in a complex obstetric case in more detail.
The first conversation is free and strictly confidential. The earlier we look at the records, the better.
