On August 10, 2023, a trial judge of the Supreme Court of British Columbia found an obstetrician 85% negligent and hospital nurses 15% negligent in a medical malpractice lawsuit that resulted in multiple skull fractures and brain damage to a baby girl during birth.
The Plaintiff, Meaghann Sitter (“Meaghann”) was 36 weeks plus 4 days pregnant when she went into spontaneous labour on June 13, 2014.
Meaghann was admitted to the Lions Gate Hospital in North Vancouver, British Columbia. She came under the care of Dr. Karis Love (“Dr. Love”), an obstetrician and gynecologist. Dr. Love was responsible for providing medical care to Meghann during her labour and delivery. In addition to suing the obstetrician Dr. Love for medical malpractice, the Plaintiffs also claimed negligence against the obstetrical nurses and hospital that provided obstetrical care to the expectant mother at the material time
ISSUES
At issue were standard of care and causation as well as apportionment of liability as between the doctor and nurses. Damages were settled prior to trial for an unknown amount.
FACTS
On June 13, 2014 at 2:30 p.m., Dr. Love performed an initial vaginal examination on Meaghann. At that time, Meaghann was already 6 cm dilated and her soon to be born daughter, Abigail, was presenting head down with the top of her head at approximately the level of the ischial spines of the maternal pelvis (also referred to as “0 station” or “spines”).
At trial, the parties disagreed as to the orientation (referred to in the medical records as “position”) of the fetal head at that time, and in particular whether Abigail’s head was occiput anterior (“OA”) or occiput transverse (“OT”). OA position indicates that a fetus is facing the mother’s spine, and this position is agreed to be the optimal position for vaginal delivery. OT position means the occiput (or back of the fetal head) is facing sideways (transverse), and is less ideal for passing through the ischial spines.
The next vaginal examination occurred at 5:00 p.m. when one of the obstetrical nurses reported to Dr. Love that Meaghann was fully dilated, but not yet feeling the urge to push. There was no notation as to whether there had been any fetal descent at this time (and the parties are agreed based on Abigail’s position at delivery that there had been none). Nor is there any notation as to whether Abigail was OA or OT at this time.
At 5:25 p.m., Meaghann began pushing.
At approximately 6:40 p.m., one of the obstetrical nurses contacted Dr. Love to advise that Meaghann’s contractions had slowed. In response, the Defendant obstetrician ordered an infusion of oxytocin, which the nurses infused at approximately 6:45 p.m. into Meaghann’s IV.
At 7:00 p.m. Dr. Love attended to Meaghann for the second time that day and performed a second vaginal examination. This vaginal examination indicated that Abigail had not descended at all since her first examination at 2:30 p.m. Dr. Love also determined at that time that Abigail’s head position was OT. Dr. Love attempted a manual rotation of Abigail’s head to OA at that time but was unable to move Abigail’s head at all. Dr. Love then advised the mother of two options: to continue to push for another 30 minutes with oxytocin supplementation or proceed to a caesarean section. Meaghann opted to proceed with a caesarean section.
Just after 8:00 p.m., Dr. Love performed the caesarean section but unfortunately it did not go smoothly. In Dr. Love’s words, Abigail’s head was “tightly wedged” and “severely impacted” in her mother’s pelvis. Dr. Love was unable to get her hand around Abigail’s head to elevate her head and deliver her, at least initially. Dr. Love asked an obstetrical nurse to assist by pushing Abigail’s head “from below,” i.e. from the vaginal canal. Whether that effort was done properly, and whether it effectively dis-impacted and elevated Abigail’s head from Meaghann’s pelvis, was a key issue at trial. It was uncontroversial at trial that Dr. Love then reached her hand around Abigail’s head and delivered her approximately 9 minutes into the caesarean operation.
Abigail was delivered with bruising along her left arm, shoulder and head, and she was admitted to the special care nursery shortly after her delivery. Approximately a day later, seizure activity was suspected and Abigail was transferred to BC Women’s and Children’s Hospital in Vancouver, British Columbia, where imaging established that she had three fractures on the left side of her skull and extensive brain damage.
Abigail is now 8 years old and continues to suffer from the effects of a birth trauma brain injury.
DECISION
The trial judge determined that the immediate cause of Abigail’s skull fractures and the extensive brain damage was the force of Dr. Love’s hand during the dis-impaction of her head from the mother’s pelvis during the caesarean section.
Dr. Love admitted that her hand was the cause of one of these fractures above Abigail’s ear, and likely a second one towards the back of her left parietal bone.
Dr. Love denied responsibility for a third fracture at the top of Abigail’s left parietal bone and argued that this fracture was more likely caused by the obstetrical nurse’s hand while pushing from below. The trial judge rejected Dr. Love’s argument that her hand would not have touched this part of Abigail’s head during the procedure. The trial judge found as a fact that it was far more probable that all three fractures, and the brain injuries associated with them, were caused by the same hand and the same movement: Dr. Love sliding her hand between Abigail’s head and the mother’s pubic bone in order to dis-impact and lift the fetal head at the time of the caesarean section.
The trial judge further found on all the evidence that it was Dr. Love’s hand that lifted and dis-impacted Abigail’s head from the pelvis, not the nurse’s push from below. On Dr. Love’s own evidence, as well as other expert evidence on the standard of care of doctors in this situation, the trial judge found that this maneuver was a breach of the requisite standard of care both in the way it was performed, and in its timing before other less dangerous maneuvers were attempted.
The trial judge determined on the evidence that the obstetrical nurse’s effort to dis-impact the fetal head from below was ineffective for a number of reasons, including that she was not given enough time to prepare to do this, the mother’s leg position was sub-optimal, and Abigail’s head was deeply wedged into her mother’s pelvis. The judge found that the above difficulties were the result of Dr. Love failing to specifically anticipate and adequately prepare the medical team for an effective push-up from below, and that Dr. Love breached the applicable standard of care in this regard.
The Court determined that this failure was meaningfully contributed to by a failure to properly manage Meaghann’s labour, and the failure of both Dr. Love and the nursing team to properly communicate in the hours before the caesarean section was performed.
The Plaintiffs evidence was accepted that after Dr. Love performed the vaginal examination at 7 p.m., and Meaghann chose to proceed by way of caesarean section, that she was not informed of the dangers and risks of continuing to push with contractions to achieve a vaginal delivery, either by Dr. Love or by the nurses caring for her. The trial judge found, and it was generally acknowledged by all of the Defendants that maternal pushing efforts after a caesarean section is ordered is known to create a greater risk of fetal head impaction.
Without this warning, the Court found that the pregnant mother continued to push with contractions in an effort to have a vaginal delivery up to approximately 7:55 pm when she was given the epidural in preparation for the caesarean section in the operating room. Much of this pushing was with the augmentation of oxytocin. As a result, Dr. Love and the nurses were found negligent for failing to ensure its prompt discontinuation once the caesarean was ordered.
The Defendants’ augmentation of the pregnancy mother’s pushing efforts with oxytocin, their failure to ensure the mother knew how to reduce the urge to push after the caesarean section was called, and Dr. Love’s failure to specifically advise the mother of the risks of pushing at this time, materially contributed to the greater impaction of Abigail’s fetal head in the maternal pelvis.
Dr. Love also failed to communicate to the patient the dangers of an impacted fetal head, in part because Dr. Love did not appreciate the full extent of this risk in this case. The evidence established that red flags were present, but were missed or were not communicated. In particular, no one accurately assessed progress in terms of fetal position and descent until the 7:00 p.m. vaginal exam, when it was first discovered that Abigail’s head was OT and had not descended at all since admission. By that time, Meaghann had been labouring for more than 5 hours and pushing for more than 90 minutes.
A critical failure of communication occurred at 5:00 p.m. when one of the obstetrical nurses performed a vaginal exam and advised Dr. Love that Meaghann was fully dilated. Neither Dr. Love nor the nurses have any recollection of that vaginal examination or the communication to Dr. Love with respect to it. The contemporaneous medical records do not record the position or station of the fetus during this vaginal exam, and the nurses and Dr. Love made incorrect assumptions about Abigail’s position and station based on this miscommunication.
Based on all of the evidence before the Court, the trial judge determined that at 5:00 p.m., Abigail was likely already stuck in an OT position at 0 station, and that she had likely not moved from this position or station since the vaginal examination performed by Dr. Love at approximately 2:30 p.m. that afternoon.
Had Dr. Love appreciated that Abigail had not descended after more than 2.5 hours of strong contractions (albeit in the first stage of labour when the primary measure of progress is cervical dilation) and that Meaghann was about to start pushing in an OT position, she would have attended on the labouring mother to perform a more thorough vaginal examination, and would have provided the patient with information regarding her clinical situation and options at that time.
That information would have included Dr. Love’s assessment that Meaghann had a very small pelvis, and that her fetus had not descended since the outset of labour and was not in the OA position. It would and should have included the information required to allow the mother to consider whether she wanted Dr. Love to attempt a manual rotation, to proceed with a caesarean section at that time on the basis of potential cephalopelvic disproportion (“CPD”), or to see if her fetus would rotate to OA with pushing and regular monitoring to allow for a vaginal delivery. Such a conversation would have (and should have) included a description of the risks of manual rotation with or without epidural, caesarean section, and of pushing in a malposition and potential CPD situation.
Although was unable to find that the Plaintiff would at that point most likely have chosen a caesarean section and avoided 3 hours of second stage labour, I do find that a proper appreciation of the mother’s clinical situation, timely vaginal examinations, and a proper informed consent discussion with instructions not to push once a caesarean section was ordered, would most likely have considerably reduced the amount of maternal pushing and impaction to which Abigail’s head was subjected.
The trial judge found that had Dr. Love provided the patient with the required information, that Dr. Love would most likely have suspected CPD at 6:25 pm instead of at 7:00 p.m. At 6:25 p.m., the mother would have had been more closely monitored, and regular vaginal examinations would have established that Abigail was stuck in an OT position and was not descending, and that the strong and effective maternal contraction pattern in the first and second stage, together with an hour of pushing, had made no difference to her situation. On a modified objective basis and all the evidence, had the Plaintiff received the information to which she was entitled, she would have more likely than not opted for a caesarean section at 6:25 p.m. instead of at 7:00 p.m., and would have avoided approximately 90 minutes of maternal pushing effort being applied to Abigail’s head without descent or rotation.
Instead, the evidence suggests that at 6:40 p.m. (when there was still no second stage vaginal examination of position and station), Dr. Love ordered the administration of oxytocin to strengthen the mother’s contractions and pushing efforts. The trial judge found that the oxytocin more likely than not had the effect of increasing the force of the pregnancy mother’s pushing efforts.
The Court considered whether 90 minutes of additional pushing efforts without progress after 6:25 p.m., augmented for approximately 45 minutes with oxytocin, materially contributed to the profound extent to which Abigail’s head was impacted in the mother’s pelvis at the time of the caesarean section, and to the related birth trauma brain injury that Abigail experienced during the dis-impaction of her head. The trial judge found on the evidence that it likely would have and found that breaches of the defendant medical practitioners’ standards of care during the management of the Plaintiff’s labour were causative of Abigail’s injuries.
EXPERT LIABILITY WITNESSES
Plaintiffs’ Experts
Dr. Alan Hill was qualified as an expert in pediatric neurology. He treated Abigail at BC Children’s Hospital around the time of her admission there, and continued to treat her with respect to her seizure disorder. The thrust of his evidence was to describe Abigail’s brain injuries at the time of her admission, and to establish the causal connection between her injuries at birth and her ongoing seizure disorder and other neurological challenges Abigail has faced and continues to face.
Dr. Gordon Sze was qualified as an expert in neuroradiology including the interpretation and assessment of x-ray, CT and MRI images of infants. He provided expert evidence in the Plaintiff’s case as to the interpretation of Abigail’s initial imaging scans, and the nature, extent, and cause of Abigail’s skull and brain injuries.
Christine Rokosh was called by the Plaintiffs and was qualified as an expert obstetrical nurse qualified to give expert evidence on the standard of care expected of nurses caring for patients in labour and delivery, and the physiology of labour and delivery of the baby.
Dr. Suzanne Wong is an obstetrician and gynecologist. She is presently an Associate Professor in Obstetrics and Gynecology Department at the University of Toronto Faculty of Medicine and an obstetrician and gynecologist at St. Joseph’s Hospital. She was qualified as an expert in obstetrics and was permitted to give opinion evidence on the standard of care of an obstetrician managing a patient in labour and delivery, the physiology of labour and delivery, and the cause of Abigail’s skull fractures and brain injury.
Defence Experts
Dr. Elaine Herer is an obstetrician and gynecologist. She is the Deputy Chief of the Department of Obstetrics and Gynecology at Sunnybrook Health Sciences Centre in Toronto. She was called by the Defendant physician, Dr. Love. Dr. Herer was qualified as an expert in obstetrics and was permitted to give opinion evidence on the standard of care applicable to Dr. Love in this case, including what a reasonably competent obstetrician would expect of reasonably competent nurses
Dr. Kirsten Duckitt is an obstetrician and gynecologist at the Vancouver Island Women’s Clinic, and a Clinical Associate Professor in the Department of Obstetrics and Gynecology at the University of BC’s Faculty of Medicine. She was also called by the Defendant physician Dr. Love, and was qualified as an expert in obstetrics and gynecology to opine on the requisite standard of care in this case.
Dr. Ravi Bhargava, a University of Alberta Professor in Radiology and staff radiologist at a number of hospitals in Edmonton including the Royal Alexandra Hospital, was called by Dr. Love. Dr. Bhargava was qualified as an expert in pediatric neuroradiology and allowed to give expert opinion evidence regarding the interpretation of the medical imagery in this case.
Dr. Jerome Dansereau, is an obstetrician and gynecologist at Victoria General Hospital. Dr. Dansereau was called by the Hospital Defendants. He was qualified as an obstetrician and allowed to give opinion evidence on the standard of care of a nurse providing care to a patient in labour and delivery, the physiology of labour and delivery, and the cause of Abigail’s birth trauma brain injury.
Angela King, a Registered Nurse at the Childbirth and Children’s Centre in Markham, was also called by the Hospital Defendants and qualified as an obstetrical nurse and allowed to give expert opinion evidence on the standard of care expected of nurses caring for patients in labour and delivery and the physiology of labour and delivery.
Decision Date: August 10, 2023
Jurisdiction: Supreme Court of British Columbia
Citation: Gilmore v Love, 2023 BCSC 1380 (CanLII)
