On January 29, 2024, the Ontario Superior Court of Justice dismissed a medical malpractice trial on behalf of a young mother who has been left in a permanent vegetative state after suffering a cardiac arrest following the C-section delivery of her baby.

Although the trial judge did find some negligence on the part of the anesthesiologists that cared for the mother during her C-section, the case was ultimately dismissed because the Court accepted that the bad outcome had been caused by an amniotic fluid embolism (“AFE”) that could not have been prevented even with appropriate care.

FACTS

On August 10, 2009 at 0420h, the patient had a spontaneous rupture of her amniotic membranes. She and her husband went to the Mount Sinai Hospital in Toronto. She was admitted to the birthing unit and was hopeful of a vaginal birth having had a Cesarian section with her last child.

The mother’s labour commenced and progressed until she was 6 cm dilated. An ultrasound demonstrated that the baby was in brow presentation. In brow presentation, the neck is not extended as much as in face presentation, and the leading part is the area between the anterior fontanelle and the orbital ridges.

The patient continued to labour without progression. Around 1850h, after a discussion with the doctors and her husband, the expectant mother elected to undergo a Caesarian section and at 1952h she was transferred to the operating room (“OR”) for surgery.

Dr. Dan Farine, Dr. Yoav Yinon, and Dr. Tharani Kandasamy were on call that evening. Dr. Farine was the staff obstetrician and most responsible physician for the patient and in that role, he directed the obstetrical and surgical care for his patient. Dr. Yinon was a qualified obstetrician and at the time of these events, he was in the final year of his second fellowship in maternal fetal medicine. Dr. Kandasamy was a second-year resident in the obstetrical program. Both Dr. Yinon and Dr. Kandasamy worked under the supervision of Dr. Farine. 

Dr. Ivor Fleming was the staff anaesthesiologist on call with Dr. Merita Simitciu, a second-year resident, assisting him. Dr. Farine and Dr. Fleming as the staff physicians on call were also responsible for attending to the needs of other patients on the floor that evening.

The patient had been given intravenous fluids earlier that day and was also given an epidural for pain management. The C-section started at 2035h and a healthy baby boy was delivered at 2047h. 

Unfortunately, the uterine incision extended into the uterine artery during the delivery. This complicated is referred to as a uterine extension. At trial, it was not disputed that uterine extensions occur with Caesarian deliveries and they are not suggestive of negligence.

During the course of the C-section, the patient was, at times, hypotensive (low blood pressure) and tachycardic (high heart rate). She was hemodynamically unstable and required repeated doses of phenylephrine and ephedrine to increase and/or maintain her blood pressure.

At trial, it was alleged that the staff anesthesiologist Dr. Fleming did not impart this information to the obstetrical team who were left unaware of the patient’s hemodynamic instability.

Following the delivery of the placenta at 2049h, Dr. Yinon noted bleeding in the area of the left side of the patient’s uterus. The mother’s uterus was placed outside of her abdomen so Dr. Yinon and the others had a better view of the area of bleeding, which was emanating from the left uterine artery. Dr. Yinon and Dr. Kandasamy clamped the location of the bleed to temporarily stop the bleeding and Dr. Yinon did several sutures to achieve hemostasis. Because the bleeding was a complication, Dr. Yinon had Dr. Farine paged to return to the operating room and he arrived at approximately 2122h. He observed the area and noted additional bleeding, so some more sutures were placed.

At 2142h Dr. Farine called urology/urogynecology to come to the operating room and check for possible damage to the patient’s ureter or other organs. Dr. Farine commented that the patient appeared pale and he discussed the issue of a potential blood transfusion with Dr. Fleming, who felt that a blood transfusion was not indicated based on the amount of blood that the mother had lost. They decided to obtain some blood work results. Blood for testing was drawn from the patient at 2205h. At 2227h, an arterial blood gas sample was taken and sent to the lab for analysis.

The urology team did not arrive quickly and Dr. Fleming decided to convert the patient from an epidural anaesthesiology to general anaesthesiology because she was uncomfortable and nauseous, and this was completed at 2205h. The mother’s uterus continued to be exteriorized. She was intubated and put on mechanical ventilation after the administration of the general anaesthesiology. At 2222h the urology team arrived, and a cystoscopy was undertaken and was completed at 2308h. Following completion of the cystoscopy, Dr. Yinon and Dr. Kandasamy placed the patient’s uterus in its place, and commenced suturing her abdomen, which was completed at 2327h.

Sometime between 2315h and 2327h, Dr. Fleming left the operating room to attend to another patient. On the instructions of Dr. Fleming, at 2330h Dr. Simitciu commenced the reversal agents to reverse the effects of the general anaesthesiology. The Plaintiff was hypotensive and tachycardic and at 2339h it was determined she was too unstable to be extubated or transferred to the Post Anaesthesiology Care Unit. A second dose of the reversal agent was administered. At 2345h, the patient was moved to a stretcher in anticipation of her transfer.

At 2355h, it was noted she the patient was unresponsive with no measurable blood pressure. She was placed on ventilation. Dr. Fleming and Dr. Farine were called for assistance and arrived very quickly. Resuscitation was commenced at 0006h. A Code Blue was called at 0007h and the Code Blue team arrived within minutes.

The patient was transfused with 2 units of packed red blood cells by 0046h. She was transferred to the ICU. It was noted she was actively bleeding and her abdomen was distended. A laparotomy was performed at 1030h on August 11, 2009 and it was noted that the patient was bleeding from everywhere and that she had disseminated intravascular coagulopathy (“DIC”). Large amounts of blood were removed from her abdomen and the patient underwent a subtotal hysterectomy.

As a result of her arrest, the young mother suffered a permanent brain injury and did not regain consciousness. She remains in a vegetative state at the Toronto Grace Hospital. There is no expectation of improvement. 

DECISION

Standard of Care

With respect to the claim against Dr. Farine, the trial judge found that he had met the standard of care expected of him in the circumstances. Specifically, the trial judge determined that Dr. Farine met the standard of care of an obstetrician:

• with respect to the nature of his communications in the OR.
• by not insisting that the patient have a blood transfusion, and
• by waiting for urology to perform a cystoscopy.

The trial judge was furthermore satisfied that the other members of obstetrical team, that being Drs. Yinon and Kandasamy, met the standard of care with respect to their communications in the OR.

However, with respect to Dr. Fleming, the trial judge did find that his care had fallen below standard with respect to this patient (at para. 91):

The failure of Dr. Fleming to inform the surgical team of the deterioration in Cindy’s blood pressure, her instability and the fact that she was in shock falls below the standard of care of an anaesthesiologist in the situation in which Dr. Fleming found himself. He was negligent. 

The trial judge additionally found that Dr. Fleming fell below the standard of care of a reasonable and prudent anaesthesiologist when he left the OR a second time when his patient was unstable and in shock and he did not know the reason for it.

The trial judge was also critical of the record keeping of the resident as there was an absence of charting for a period of more than 40 minutes during a critical time in the patient’s care. The trial determined that the record keep in this regard was negligent.

The trial judge did not accept, however, that Dr. Fleming’s conduct had fallen below the standard of care on the other grounds alleged by the patient’s family. Specifically, the trial judge found that Dr. Fleming met the standard of care by:

• not inserting a central line in the patient.
• not initiating a blood transfusion prior to obtaining the hemoglobin result or after receipt of it, and
• by removing the general anesthetic for the patient.

Causation

The issue of causation was hotly contested at trial.

The patient asserted that the mother suffered an arterial bleed and resulting blood loss, which was not recognized by the doctors. It led to hypovolemic/hemorrhagic shock which was left untreated and caused her cardiac arrest. 

The Defendants argued that the patient had the very rare condition of an AFE which could not have been predicted and which inevitably results in the death or very serious injury to the mother. 

After considering the totality of the evidence, the trial judge concluded that the patient’s cardiac arrest was due to an AFE which all of the experts agreed is exceedingly rare, cannot be predicted and cannot be prevented. There is no test to diagnose AFE nor is there any medication to treat it. There are no reliable risk factors for AFE and it is not preventable.

In coming to this decision, the trial judge relied significantly on the evidence of Dr. Farine, who made important first-hand observations that supported a finding of AFE for the patient’s deterioration over that of a major hemorrhage. Specifically, 

• after the uterus was put back in, there was no bleeding. If there had been, Dr. Farine would have observed it. The hemoglobin reading of 99 at the time was confirmatory of no ongoing bleeding.
• later in the morning, Dr. Farine observed the patient’s blood-filled abdomen. The blood was pouring into the patient’s abdomen from “everywhere.” It was Dr. Farine’s observation that this was not surgical bleeding but bleeding caused from DIC, which was the result of AFE.

Although the trial judge had found that Dr. Fleming breached the standard of care by failing to notify the surgeons of the patient’s hemodynamic instability, she found that this breach had no impact on the outcome for the patient.

Moreover, it was determined that the patient did not suffer a post-partum hemorrhage that went undetected by the attending physicians. Instead, she suffered an AFE with the associated DIC which led to a cardiac arrest. The fact that Dr. Fleming left the OR while the patient was unstable and in shock played no role in the outcome, nor did the failure of Dr. Simitciu to properly fill out the chart.

The experts, Dr. Lightheart, Dr. Clark, Dr. Barrett all concurred that when a patient suffers an AFE, there is little if anything that can be done to avoid its ravages. For these reasons, the Court concluded that was no causal relationship between the breaches of the standard of care found by the trial judge concerning Dr. Fleming and his resident and the heart attack suffered by the patient.

Limitation Defence

The Defendants asserted a limitation defence because the claim as against the anesthesiologists had not been commenced until January, 2017, over 7 years from when the bad outcome occurred. However, the trial judge was satisfied that on the facts of this medically complex case that a case against the anaestheologists could not have been discovered until the Plaintiff’s lawyer received a supportive opinion from an expert which had not taken place until January, 2015.

As such, the claim was not statute-barred by virtue of a limitation period.

EXPERT LIABILITY WITNESSES

Plaintiffs’ Experts

Dr. Margaret Lightheart is an obstetrician who testified at trial on behalf of the Plaintiffs and provided expert opinions on the issues of standard of care of the obstetrical team as well as on causation. Dr. Lightheart has worked as an obstetrician/gynecologist since 1989 and spent 22 years at the Hamilton Health Sciences Centre before moving to Owen Sound where she continues to work full time.

Dr. Geoffrey Dugas was qualified as an expert witness on the issue of standard of care of the anaesthesiologists and also on the issue of causation. Dr. Dugas is an anaesthesiologist working at the Brampton Civil Hospital, where he has worked since 2009 and he was chief of the department from 2012 to 2017. The majority of his on-call schedule involves approximately 70% obstetrical work. He estimated that he works on 100-130 Caesarian section operations per year.

Defence Experts

Dr. Jon Barrett has been practicing as an obstetrician/gynecologist since 1995. He worked for most of his career at Women’s College Hospital as the head of the maternal fetal medicine department and more recently, he moved to McMaster University and St. Joseph’s Hospital in Hamilton. Dr. Barrett has dealt with high-risk pregnancies throughout his career and has been involved in extensive teaching and lecturing around the world. 

Dr. Melanie Jaeger was called as an expert on behalf of the Defendants. She is an anaesthesiologist practicing at the Kingston Health Sciences Centre and she was qualified to offer an opinion to the Court on both standard of care and on causation. 

Dr. Steven Clark was called as an expert in critical care obstetrics on behalf of the defence to provide an opinion on causation. Dr. Clark’s practice at a teaching hospital in Houston, Texas involved the treatment of critically ill women, those with cancer, strokes, hemorrhage, and serious heart issues while pregnant. 

Decision Date: January 29, 2024

Jurisdiction: Ontario Superior Court of Justice

Citation: Bendah v. Dr. Farine and Dr. Fleming, 2024 ONSC 624 (CanLII)