Of the difficult outcomes in malpractice litigation, one of the most painful is the case where the standard of care was breached and the outcome was catastrophic, but causation cannot be established because the underlying medicine would have produced the bad result regardless. Bendah v Farine and Fleming, 2024 ONSC 624, is such a case. A young mother walked into Mount Sinai Hospital in Toronto in August 2009 for the delivery of her child. She left in a permanent vegetative state. She has been at Toronto Grace Hospital ever since. The malpractice trial concluded in 2024 with a finding that the anesthesiologist had been negligent in his communication with the surgical team, but that the cause of the cardiac arrest was an amniotic fluid embolism — a rare, unpredictable, and untreatable obstetric catastrophe. The breach did not cause the outcome.
The case is doctrinally significant in several respects. It applies the standard-of-care framework to a multi-physician surgical team and produces mixed findings (SOC met by some, breached by others). It engages the Clements v Clements, 2012 SCC 32, but-for causation analysis in a context where the medicine pulled the case in favour of the defence. It illustrates the operation of the discoverability framework under the Limitations Act, 2002. And it stands as a sobering example of the structural difficulty of establishing causation in obstetric malpractice involving rare obstetric emergencies.
The substantive case
The patient was a young mother whose first child had been delivered by Caesarian section. On August 10, 2009, she had a spontaneous rupture of her amniotic membranes at home and presented to Mount Sinai Hospital in Toronto, hoping for a vaginal birth this time.
Labour progressed to six centimetres of cervical dilation. Ultrasound demonstrated that the baby was in brow presentation — a position in which the head is partially extended such that the area between the anterior fontanelle and the orbital ridges leads the descent. Labour did not progress further. After discussion with the obstetric team and her husband, the patient elected to proceed with a Caesarian section.
The clinical team in the operating room comprised three obstetricians (Dr. Farine as staff obstetrician and most responsible physician; Dr. Yinon as a maternal-fetal medicine fellow in his final year; Dr. Kandasamy as a second-year obstetric resident) and two anesthesiologists (Dr. Fleming as staff anesthesiologist; Dr. Simitciu as a second-year anesthesia resident). Both staff physicians had other patients on the floor that evening as well.
The C-section commenced at 2035h. A healthy baby boy was delivered at 2047h. The uterine incision extended into the uterine artery — a recognized non-negligent complication of Caesarian delivery known as a uterine extension. The placenta was delivered, and bleeding was noted from the area of the left uterine artery. The obstetric team exteriorized the uterus for better visualization, clamped the bleeding vessel, and placed sutures to achieve hemostasis. Dr. Farine was paged back to the operating room and arrived around 2122h.
During this period, the patient was hemodynamically unstable. Her blood pressure was low; her heart rate was high; she required repeated doses of phenylephrine and ephedrine. The anesthesia team managed her cardiovascular status. The obstetric team continued surgical hemostasis.
At 2142h, Dr. Farine called urology to assess for possible damage to the ureter. At 2205h, blood was drawn for laboratory testing, and the patient was converted from epidural to general anesthesia because she was uncomfortable. The urology team arrived at 2222h; a cystoscopy was performed; surgical closure of the abdomen was completed at 2327h.
Between 2315h and 2327h, Dr. Fleming left the operating room to attend to another patient. The anesthesia resident continued the case under his direction. At 2330h, the reversal agents for the general anesthesia were commenced. The patient was hemodynamically unstable, and at 2339h it was determined that she was too unstable to extubate or transfer to recovery. At 2355h, she was unresponsive with no measurable blood pressure. Resuscitation began at 0006h on August 11; a Code Blue was called at 0007h.
The patient was transfused with two units of packed red blood cells and transferred to the intensive care unit. Her abdomen was distended; she appeared to be actively bleeding. At 1030h on August 11, a laparotomy was performed. The patient was bleeding from “everywhere” — a clinical finding consistent with disseminated intravascular coagulopathy (DIC). Large amounts of blood were evacuated from her abdomen. A subtotal hysterectomy was performed.
The patient never regained consciousness. She has been in a permanent vegetative state at Toronto Grace Hospital since the events.
Clinical context: amniotic fluid embolism, DIC, and uterine extensions
The clinical framework engaged by the case requires brief explanation.
Amniotic fluid embolism (AFE). AFE is a rare obstetric catastrophe in which amniotic fluid enters the maternal circulation, triggering a cascade of anaphylactoid-like and coagulopathic responses. The incidence is approximately 1 in 40,000 deliveries. Historical mortality estimates were very high (50 to 80 percent); modern estimates suggest improved survival with prompt resuscitation but a substantial proportion of survivors have permanent neurological impairment from cardiac arrest. AFE has no specific diagnostic test, no preventive measures, and no specific treatment beyond supportive care. The condition is generally regarded as unavoidable when it occurs.
Disseminated intravascular coagulopathy (DIC). DIC is a coagulopathic state in which the body’s clotting system becomes simultaneously hyperactive (forming microthrombi throughout the circulation) and depleted of the factors needed for normal hemostasis (producing diffuse bleeding). DIC is one of the recognized manifestations of AFE and is also seen in other severe obstetric complications. The clinical picture of “bleeding from everywhere” — the picture observed at the laparotomy in this case — is characteristic.
Uterine extension. A uterine extension is a recognized non-negligent complication of Caesarian section in which the incision in the uterus extends beyond the intended margins, sometimes into the uterine artery or other adjacent structures. Uterine extensions occur in a small percentage of C-sections and are addressed by intraoperative repair. The occurrence of a uterine extension is not, by itself, evidence of negligence.
The team approach to standard of care
The trial judge analyzed each physician’s role separately. This is the proper approach in multi-physician malpractice cases — each physician’s standard of care is calibrated to their role, seniority, and the events they were involved in.
Dr. Farine (staff obstetrician). Met the standard of care. His communications in the operating room, his decision not to insist on a blood transfusion at a particular point, and his decision to wait for urology to perform the cystoscopy all fell within the range of acceptable obstetric practice.
Dr. Yinon (MFM fellow) and Dr. Kandasamy (OB resident). Met the standard of care in their communications and surgical conduct.
Dr. Fleming (staff anesthesiologist). Breached the standard of care in three respects. First, he failed to inform the surgical team of the patient’s deteriorating hemodynamic status — the falling blood pressure, the cardiovascular instability, and the fact that she was in shock. Second, he left the operating room a second time when the patient was unstable and the cause of the instability was unknown. The trial judge found that this was below the standard of a reasonable and prudent anesthesiologist.
Dr. Simitciu (anesthesia resident). Record-keeping was inadequate. There was an absence of charting for more than 40 minutes during a critical period in the patient’s care. The trial judge found that this was negligent record-keeping.
The trial judge did not accept other allegations against Dr. Fleming — including allegations that he should have inserted a central line earlier, that he should have initiated a blood transfusion before obtaining the hemoglobin result, or that he should not have reversed the general anesthesia. Those decisions fell within the acceptable range.
The mixed SOC findings are doctrinally instructive. SOC analysis in multi-physician cases is not a binary “team passed or failed” exercise. Each physician’s conduct is assessed against the standard expected of someone in their position. A patient can be cared for by a team in which most members meet the standard and one member does not, and the SOC analysis records that with appropriate specificity.
The causation question
The causation issue at trial was hotly contested.
The plaintiff’s theory. The plaintiff alleged that the patient had suffered an arterial bleed and resulting blood loss that was not recognized by the doctors. The unrecognized blood loss led to hypovolemic and hemorrhagic shock, which was left untreated, and caused the cardiac arrest. On this theory, Dr. Fleming’s failure to inform the surgical team of the hemodynamic instability was causally connected to the outcome — had he communicated the deterioration, the surgical team would have addressed the bleeding more aggressively, the shock would have been treated, and the cardiac arrest would have been avoided.
The defence theory. The defence argued that the patient had suffered an AFE. The condition is rare, unpredictable, and not preventable. Once it occurs, it produces DIC and cardiovascular collapse. No standard-of-care breach affected the outcome because AFE was always going to produce the result it did.
The trial judge’s analysis. The trial judge accepted the AFE theory. Two factual findings supported the conclusion:
- No bleeding after the uterus was returned. Dr. Farine made first-hand observations at the surgical site. Once the uterus was placed back in the abdomen and the abdominal incision was closing, there was no ongoing surgical bleeding. The hemoglobin reading of 99 confirmed the absence of significant ongoing blood loss at that point. If there had been an unrecognized arterial bleed, the post-surgical clinical picture and the hemoglobin would have shown it.
- The laparotomy findings. When the laparotomy was performed in the morning of August 11, the abdomen was filled with blood that was “pouring from everywhere.” This was not surgical bleeding from an identifiable vessel; it was diffuse bleeding from DIC. The clinical picture was characteristic of post-AFE coagulopathy, not of an unrecognized surgical hemorrhage.
The trial judge accepted the conclusion that the cardiac arrest was caused by AFE rather than by unrecognized hemorrhagic shock. The breaches of standard of care by Dr. Fleming and the resident did not cause the outcome.
The doctrinal framework: but-for causation and obstetric catastrophe
The framework is Clements v Clements, 2012 SCC 32: the plaintiff must prove on a balance of probabilities that the harm would not have occurred but for the defendant’s negligence. Where the underlying medicine establishes that the outcome would have occurred regardless of the breach, the but-for test fails. The breach may have been a real breach producing real risk in other circumstances; the question is whether it caused the specific outcome.
AFE is a paradigmatic case where causation often defeats a malpractice claim. The condition is unpredictable (no reliable risk factors), undiagnosable in real time (no specific test), and untreatable (no specific medication). When AFE causes catastrophic outcome, the outcome was generally inevitable from the moment the condition began. Any breach of standard of care that occurred during the same care episode is unlikely to be causally connected to the AFE outcome.
The doctrinal point is not that AFE provides a defence to all obstetric malpractice. AFE specifically is a recognized obstetric catastrophe. Where it is established as the cause of the outcome (rather than alleged), the causation analysis follows.
The limitations issue: discoverability
The defendants raised a limitation defence — the claim against the anesthesiologists had not been commenced until January 2017, more than seven years after the events of August 2009. Under the Limitations Act, 2002, the basic limitation period in Ontario is two years from the date the claim is discovered.
The trial judge applied the discoverability framework from section 5 of the Limitations Act. The framework asks when the plaintiff knew, or with reasonable diligence ought to have known, the matters specified in the section — that the injury occurred, that it was caused by the defendant’s act or omission, that the defendant’s act or omission was a tort, and that a proceeding would be an appropriate means to remedy the injury.
In malpractice cases, discoverability often turns on when the plaintiff received a supportive expert opinion. Without expert support, the plaintiff cannot reasonably know whether the bad outcome was caused by the medicine (and therefore actionable) or by an unfortunate but non-negligent complication.
In this case, the plaintiff’s lawyer received a supportive expert opinion against the anesthesiologists in January 2015. The trial judge held that this was the relevant discovery date for the anesthesiology claim, and the claim commenced in January 2017 was therefore within the two-year window. The limitation defence failed.
This is a useful illustration of the discoverability framework in a complex multi-physician malpractice case. The framework allows the limitation period to be calibrated to the realistic point at which the plaintiff could have known the claim was viable.
The doctrinal lessons
The case stands for several propositions.
SOC breach without causation can occur in any context. Real breaches by qualified physicians acting in difficult clinical situations sometimes do not cause the bad outcome. The medicine may explain the outcome through an independent mechanism. The breach is real; the causation is absent; the claim fails.
AFE is a recognized obstetric catastrophe. Where AFE is established as the cause of an obstetric outcome, causation in malpractice generally fails because the condition is unpredictable, undiagnosable in real time, and untreatable. Plaintiff counsel evaluating obstetric malpractice cases involving cardiovascular collapse with DIC need to consider AFE as a defence theory.
Team SOC analysis is individualized. Each physician’s role attracts its own standard. In a multi-physician surgical case, some physicians may meet the standard and others may not. The analysis is granular, not collective.
Anesthesiology-obstetric communication is a recognized SOC issue. Where the anesthesiologist and the surgical team are managing the same patient, each is responsible for communicating relevant clinical information to the other. Failure of communication is a SOC breach independent of any technical care failure. This is true even where the breach does not cause the specific outcome.
The discoverability framework can preserve stale claims. Under the Limitations Act, 2002, s. 5, the limitation period runs from discovery. In complex multi-physician malpractice cases, discovery often requires a supportive expert opinion. The limitation period can be substantially longer than the two-year period running from the events themselves.
Connections to the cluster
The causation/SOC defeat sub-cluster. Bendah is the tenth case in the rewritten causation/SOC defeat sub-cluster on this site. The cluster now includes:
The cluster covers most of the realistic causation defeat patterns: the breach-without-causation pattern (Knight, Bendah); the SOC-met pattern (Coville, Martindale, Willick); the cancer natural history pattern (Tripp); the competing experts pattern (Hanson-Tasker, Sutherland); and the procedural defeat pattern (Beazley).
The birth injury cluster. Bendah is the seventh case in the birth injury sub-cluster, and the first to involve catastrophic injury to the mother rather than the baby:
Limitations and discoverability sub-grouping. Bendah anchors a new doctrinal sub-grouping on the Limitations Act, 2002, s. 5 discoverability framework. This is a recurring issue in malpractice cases because the gap between adverse outcome and discovery of viable claim is often substantial.
Why this case matters
For prospective clients. A bad outcome — even a catastrophic one — does not by itself establish a viable malpractice claim. The medicine has to support both standard-of-care breach and causation. Where the cause of the bad outcome is an unpredictable, unpreventable obstetric catastrophe (AFE), the case is generally not viable regardless of how compelling the human story. This is one of the candid messages of the foundational guide on suing for medical malpractice in Ontario — many bad outcomes do not correspond to viable legal claims.
For plaintiff counsel. Obstetric malpractice cases involving sudden maternal cardiovascular collapse with DIC should be carefully evaluated for the AFE defence. The defence will be marshalled aggressively if there is any factual basis for it. The plaintiff’s causation theory must be able to overcome AFE as an alternative explanation — typically requiring strong intraoperative findings of an identifiable bleed, a clinical picture inconsistent with the AFE timeline, or expert evidence that addresses the AFE possibility directly.
For defence counsel. Bendah is useful precedent on the AFE causation defence and on the proper individualized SOC analysis in multi-physician cases. The case is also useful precedent on the limits of communication-failure liability — where the breach is communication-based and the causation requires that the better communication would have changed the outcome, the medicine must support the counterfactual.
For practising anesthesiologists and obstetricians. The case is a clinical and professional reminder. The communication of cardiovascular status from the anesthesia team to the surgical team is a SOC issue. The decision to leave the OR when the patient is unstable is a SOC issue. Inadequate record-keeping during critical periods is a SOC issue. Even where these breaches do not cause specific outcomes, they create exposure and reflect poorly on the standard of practice the team is meeting.
For more on obstetric malpractice and birth injury in Ontario, see Birth Injury Lawyer in Toronto. For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: January 29, 2024
Jurisdiction: Ontario Superior Court of Justice
Citation: Bendah v Dr Farine and Dr Fleming, 2024 ONSC 624 (CanLII)
Key authorities: Clements v Clements, 2012 SCC 32 (but-for causation); Limitations Act, 2002, SO 2002, c 24, Sched B, s 5 (discoverability)
Bendah v Fleming: When an Amniotic Fluid Embolism Defeats Causation
A young mother left in a permanent vegetative state after C-section. The court found anesthesiology negligence but accepted that an amniotic fluid embolism was the unavoidable cause.
Of the difficult outcomes in malpractice litigation, one of the most painful is the case where the standard of care was breached and the outcome was catastrophic, but causation cannot be established because the underlying medicine would have produced the bad result regardless. Bendah v Farine and Fleming, 2024 ONSC 624, is such a case. A young mother walked into Mount Sinai Hospital in Toronto in August 2009 for the delivery of her child. She left in a permanent vegetative state. She has been at Toronto Grace Hospital ever since. The malpractice trial concluded in 2024 with a finding that the anesthesiologist had been negligent in his communication with the surgical team, but that the cause of the cardiac arrest was an amniotic fluid embolism — a rare, unpredictable, and untreatable obstetric catastrophe. The breach did not cause the outcome.
The case is doctrinally significant in several respects. It applies the standard-of-care framework to a multi-physician surgical team and produces mixed findings (SOC met by some, breached by others). It engages the Clements v Clements, 2012 SCC 32, but-for causation analysis in a context where the medicine pulled the case in favour of the defence. It illustrates the operation of the discoverability framework under the Limitations Act, 2002. And it stands as a sobering example of the structural difficulty of establishing causation in obstetric malpractice involving rare obstetric emergencies.
The substantive case
The patient was a young mother whose first child had been delivered by Caesarian section. On August 10, 2009, she had a spontaneous rupture of her amniotic membranes at home and presented to Mount Sinai Hospital in Toronto, hoping for a vaginal birth this time.
Labour progressed to six centimetres of cervical dilation. Ultrasound demonstrated that the baby was in brow presentation — a position in which the head is partially extended such that the area between the anterior fontanelle and the orbital ridges leads the descent. Labour did not progress further. After discussion with the obstetric team and her husband, the patient elected to proceed with a Caesarian section.
The clinical team in the operating room comprised three obstetricians (Dr. Farine as staff obstetrician and most responsible physician; Dr. Yinon as a maternal-fetal medicine fellow in his final year; Dr. Kandasamy as a second-year obstetric resident) and two anesthesiologists (Dr. Fleming as staff anesthesiologist; Dr. Simitciu as a second-year anesthesia resident). Both staff physicians had other patients on the floor that evening as well.
The C-section commenced at 2035h. A healthy baby boy was delivered at 2047h. The uterine incision extended into the uterine artery — a recognized non-negligent complication of Caesarian delivery known as a uterine extension. The placenta was delivered, and bleeding was noted from the area of the left uterine artery. The obstetric team exteriorized the uterus for better visualization, clamped the bleeding vessel, and placed sutures to achieve hemostasis. Dr. Farine was paged back to the operating room and arrived around 2122h.
During this period, the patient was hemodynamically unstable. Her blood pressure was low; her heart rate was high; she required repeated doses of phenylephrine and ephedrine. The anesthesia team managed her cardiovascular status. The obstetric team continued surgical hemostasis.
At 2142h, Dr. Farine called urology to assess for possible damage to the ureter. At 2205h, blood was drawn for laboratory testing, and the patient was converted from epidural to general anesthesia because she was uncomfortable. The urology team arrived at 2222h; a cystoscopy was performed; surgical closure of the abdomen was completed at 2327h.
Between 2315h and 2327h, Dr. Fleming left the operating room to attend to another patient. The anesthesia resident continued the case under his direction. At 2330h, the reversal agents for the general anesthesia were commenced. The patient was hemodynamically unstable, and at 2339h it was determined that she was too unstable to extubate or transfer to recovery. At 2355h, she was unresponsive with no measurable blood pressure. Resuscitation began at 0006h on August 11; a Code Blue was called at 0007h.
The patient was transfused with two units of packed red blood cells and transferred to the intensive care unit. Her abdomen was distended; she appeared to be actively bleeding. At 1030h on August 11, a laparotomy was performed. The patient was bleeding from “everywhere” — a clinical finding consistent with disseminated intravascular coagulopathy (DIC). Large amounts of blood were evacuated from her abdomen. A subtotal hysterectomy was performed.
The patient never regained consciousness. She has been in a permanent vegetative state at Toronto Grace Hospital since the events.
Clinical context: amniotic fluid embolism, DIC, and uterine extensions
The clinical framework engaged by the case requires brief explanation.
Amniotic fluid embolism (AFE). AFE is a rare obstetric catastrophe in which amniotic fluid enters the maternal circulation, triggering a cascade of anaphylactoid-like and coagulopathic responses. The incidence is approximately 1 in 40,000 deliveries. Historical mortality estimates were very high (50 to 80 percent); modern estimates suggest improved survival with prompt resuscitation but a substantial proportion of survivors have permanent neurological impairment from cardiac arrest. AFE has no specific diagnostic test, no preventive measures, and no specific treatment beyond supportive care. The condition is generally regarded as unavoidable when it occurs.
Disseminated intravascular coagulopathy (DIC). DIC is a coagulopathic state in which the body’s clotting system becomes simultaneously hyperactive (forming microthrombi throughout the circulation) and depleted of the factors needed for normal hemostasis (producing diffuse bleeding). DIC is one of the recognized manifestations of AFE and is also seen in other severe obstetric complications. The clinical picture of “bleeding from everywhere” — the picture observed at the laparotomy in this case — is characteristic.
Uterine extension. A uterine extension is a recognized non-negligent complication of Caesarian section in which the incision in the uterus extends beyond the intended margins, sometimes into the uterine artery or other adjacent structures. Uterine extensions occur in a small percentage of C-sections and are addressed by intraoperative repair. The occurrence of a uterine extension is not, by itself, evidence of negligence.
The team approach to standard of care
The trial judge analyzed each physician’s role separately. This is the proper approach in multi-physician malpractice cases — each physician’s standard of care is calibrated to their role, seniority, and the events they were involved in.
Dr. Farine (staff obstetrician). Met the standard of care. His communications in the operating room, his decision not to insist on a blood transfusion at a particular point, and his decision to wait for urology to perform the cystoscopy all fell within the range of acceptable obstetric practice.
Dr. Yinon (MFM fellow) and Dr. Kandasamy (OB resident). Met the standard of care in their communications and surgical conduct.
Dr. Fleming (staff anesthesiologist). Breached the standard of care in three respects. First, he failed to inform the surgical team of the patient’s deteriorating hemodynamic status — the falling blood pressure, the cardiovascular instability, and the fact that she was in shock. Second, he left the operating room a second time when the patient was unstable and the cause of the instability was unknown. The trial judge found that this was below the standard of a reasonable and prudent anesthesiologist.
Dr. Simitciu (anesthesia resident). Record-keeping was inadequate. There was an absence of charting for more than 40 minutes during a critical period in the patient’s care. The trial judge found that this was negligent record-keeping.
The trial judge did not accept other allegations against Dr. Fleming — including allegations that he should have inserted a central line earlier, that he should have initiated a blood transfusion before obtaining the hemoglobin result, or that he should not have reversed the general anesthesia. Those decisions fell within the acceptable range.
The mixed SOC findings are doctrinally instructive. SOC analysis in multi-physician cases is not a binary “team passed or failed” exercise. Each physician’s conduct is assessed against the standard expected of someone in their position. A patient can be cared for by a team in which most members meet the standard and one member does not, and the SOC analysis records that with appropriate specificity.
The causation question
The causation issue at trial was hotly contested.
The plaintiff’s theory. The plaintiff alleged that the patient had suffered an arterial bleed and resulting blood loss that was not recognized by the doctors. The unrecognized blood loss led to hypovolemic and hemorrhagic shock, which was left untreated, and caused the cardiac arrest. On this theory, Dr. Fleming’s failure to inform the surgical team of the hemodynamic instability was causally connected to the outcome — had he communicated the deterioration, the surgical team would have addressed the bleeding more aggressively, the shock would have been treated, and the cardiac arrest would have been avoided.
The defence theory. The defence argued that the patient had suffered an AFE. The condition is rare, unpredictable, and not preventable. Once it occurs, it produces DIC and cardiovascular collapse. No standard-of-care breach affected the outcome because AFE was always going to produce the result it did.
The trial judge’s analysis. The trial judge accepted the AFE theory. Two factual findings supported the conclusion:
The trial judge accepted the conclusion that the cardiac arrest was caused by AFE rather than by unrecognized hemorrhagic shock. The breaches of standard of care by Dr. Fleming and the resident did not cause the outcome.
The doctrinal framework: but-for causation and obstetric catastrophe
The framework is Clements v Clements, 2012 SCC 32: the plaintiff must prove on a balance of probabilities that the harm would not have occurred but for the defendant’s negligence. Where the underlying medicine establishes that the outcome would have occurred regardless of the breach, the but-for test fails. The breach may have been a real breach producing real risk in other circumstances; the question is whether it caused the specific outcome.
AFE is a paradigmatic case where causation often defeats a malpractice claim. The condition is unpredictable (no reliable risk factors), undiagnosable in real time (no specific test), and untreatable (no specific medication). When AFE causes catastrophic outcome, the outcome was generally inevitable from the moment the condition began. Any breach of standard of care that occurred during the same care episode is unlikely to be causally connected to the AFE outcome.
The doctrinal point is not that AFE provides a defence to all obstetric malpractice. AFE specifically is a recognized obstetric catastrophe. Where it is established as the cause of the outcome (rather than alleged), the causation analysis follows.
The limitations issue: discoverability
The defendants raised a limitation defence — the claim against the anesthesiologists had not been commenced until January 2017, more than seven years after the events of August 2009. Under the Limitations Act, 2002, the basic limitation period in Ontario is two years from the date the claim is discovered.
The trial judge applied the discoverability framework from section 5 of the Limitations Act. The framework asks when the plaintiff knew, or with reasonable diligence ought to have known, the matters specified in the section — that the injury occurred, that it was caused by the defendant’s act or omission, that the defendant’s act or omission was a tort, and that a proceeding would be an appropriate means to remedy the injury.
In malpractice cases, discoverability often turns on when the plaintiff received a supportive expert opinion. Without expert support, the plaintiff cannot reasonably know whether the bad outcome was caused by the medicine (and therefore actionable) or by an unfortunate but non-negligent complication.
In this case, the plaintiff’s lawyer received a supportive expert opinion against the anesthesiologists in January 2015. The trial judge held that this was the relevant discovery date for the anesthesiology claim, and the claim commenced in January 2017 was therefore within the two-year window. The limitation defence failed.
This is a useful illustration of the discoverability framework in a complex multi-physician malpractice case. The framework allows the limitation period to be calibrated to the realistic point at which the plaintiff could have known the claim was viable.
The doctrinal lessons
The case stands for several propositions.
SOC breach without causation can occur in any context. Real breaches by qualified physicians acting in difficult clinical situations sometimes do not cause the bad outcome. The medicine may explain the outcome through an independent mechanism. The breach is real; the causation is absent; the claim fails.
AFE is a recognized obstetric catastrophe. Where AFE is established as the cause of an obstetric outcome, causation in malpractice generally fails because the condition is unpredictable, undiagnosable in real time, and untreatable. Plaintiff counsel evaluating obstetric malpractice cases involving cardiovascular collapse with DIC need to consider AFE as a defence theory.
Team SOC analysis is individualized. Each physician’s role attracts its own standard. In a multi-physician surgical case, some physicians may meet the standard and others may not. The analysis is granular, not collective.
Anesthesiology-obstetric communication is a recognized SOC issue. Where the anesthesiologist and the surgical team are managing the same patient, each is responsible for communicating relevant clinical information to the other. Failure of communication is a SOC breach independent of any technical care failure. This is true even where the breach does not cause the specific outcome.
The discoverability framework can preserve stale claims. Under the Limitations Act, 2002, s. 5, the limitation period runs from discovery. In complex multi-physician malpractice cases, discovery often requires a supportive expert opinion. The limitation period can be substantially longer than the two-year period running from the events themselves.
Connections to the cluster
The causation/SOC defeat sub-cluster. Bendah is the tenth case in the rewritten causation/SOC defeat sub-cluster on this site. The cluster now includes:
The cluster covers most of the realistic causation defeat patterns: the breach-without-causation pattern (Knight, Bendah); the SOC-met pattern (Coville, Martindale, Willick); the cancer natural history pattern (Tripp); the competing experts pattern (Hanson-Tasker, Sutherland); and the procedural defeat pattern (Beazley).
The birth injury cluster. Bendah is the seventh case in the birth injury sub-cluster, and the first to involve catastrophic injury to the mother rather than the baby:
Limitations and discoverability sub-grouping. Bendah anchors a new doctrinal sub-grouping on the Limitations Act, 2002, s. 5 discoverability framework. This is a recurring issue in malpractice cases because the gap between adverse outcome and discovery of viable claim is often substantial.
Why this case matters
For prospective clients. A bad outcome — even a catastrophic one — does not by itself establish a viable malpractice claim. The medicine has to support both standard-of-care breach and causation. Where the cause of the bad outcome is an unpredictable, unpreventable obstetric catastrophe (AFE), the case is generally not viable regardless of how compelling the human story. This is one of the candid messages of the foundational guide on suing for medical malpractice in Ontario — many bad outcomes do not correspond to viable legal claims.
For plaintiff counsel. Obstetric malpractice cases involving sudden maternal cardiovascular collapse with DIC should be carefully evaluated for the AFE defence. The defence will be marshalled aggressively if there is any factual basis for it. The plaintiff’s causation theory must be able to overcome AFE as an alternative explanation — typically requiring strong intraoperative findings of an identifiable bleed, a clinical picture inconsistent with the AFE timeline, or expert evidence that addresses the AFE possibility directly.
For defence counsel. Bendah is useful precedent on the AFE causation defence and on the proper individualized SOC analysis in multi-physician cases. The case is also useful precedent on the limits of communication-failure liability — where the breach is communication-based and the causation requires that the better communication would have changed the outcome, the medicine must support the counterfactual.
For practising anesthesiologists and obstetricians. The case is a clinical and professional reminder. The communication of cardiovascular status from the anesthesia team to the surgical team is a SOC issue. The decision to leave the OR when the patient is unstable is a SOC issue. Inadequate record-keeping during critical periods is a SOC issue. Even where these breaches do not cause specific outcomes, they create exposure and reflect poorly on the standard of practice the team is meeting.
For more on obstetric malpractice and birth injury in Ontario, see Birth Injury Lawyer in Toronto. For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: January 29, 2024
Jurisdiction: Ontario Superior Court of Justice
Citation: Bendah v Dr Farine and Dr Fleming, 2024 ONSC 624 (CanLII)
Key authorities: Clements v Clements, 2012 SCC 32 (but-for causation); Limitations Act, 2002, SO 2002, c 24, Sched B, s 5 (discoverability)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
Ayana v Skin Klinic: A Trial Victory on the Standard of Care for Laser Hair Removal in Ontario
Paul Cahill’s trial victory in Ayana v Skin Klinic, 2009, established the standard of care for laser hair removal performed in an Ontario dermatology clinic.
Hasan v Trillium: When the Defendant’s Negligence Creates the Evidentiary Gap
The Court of Appeal affirmed plaintiff causation in a stroke malpractice case, holding that defendants cannot rely on evidentiary gaps their own negligence created.
Pros and Cons of Juries in Medical Malpractice Lawsuits
Paul Cahill’s June 2019 Lawyer’s Daily article on when to ask for a jury in Ontario medical malpractice cases, drawing on his trial experience and the law on jury notices and appellate deference.