Birth injury cases are often the result of a chain of clinical decisions rather than a single error. Each individual decision in the chain may, viewed in isolation, fall within the range of reasonable practice; the negligence emerges when the decisions are taken together. The legal analysis has to follow the chain backwards from the injury, identifying the breaches of the standard of care along the way and asking whether and how each breach contributed to the eventual harm.
Gilmore v Love, 2023 BCSC 1380, is a model of that kind of analysis. The Supreme Court of British Columbia found an obstetrician 85% liable and the obstetrical nursing staff 15% liable for the catastrophic injuries suffered by Abigail Gilmore at her birth at Lions Gate Hospital in North Vancouver in 2014. The trial judge’s reasoning traces the injury (three skull fractures and extensive brain damage) backwards through a difficult caesarean section, through the impaction of Abigail’s head in her mother’s pelvis that necessitated the difficult section, and through the obstetrical mismanagement that produced that impaction in the first place. The decision is doctrinally important on multiple fronts, and although it is a BC decision, the substantive analysis travels directly to Ontario.
The medicine
A few points of obstetrical anatomy are needed to follow the case.
Station is a measure of how far the baby’s head has descended into the mother’s pelvis. The reference point is the ischial spines, two bony landmarks on either side of the maternal pelvis. A station of “0” or “spines” means the top of the baby’s head is at the level of the spines. Negative station numbers mean the head is above the spines; positive numbers mean the head has descended below.
Position describes the orientation of the baby’s head as it descends through the birth canal. The most favourable position is occiput anterior (OA), with the back of the baby’s head facing the mother’s spine. Occiput transverse (OT) means the back of the head is facing sideways. OT is less favourable, both because it presents a wider profile to the maternal pelvis and because it does not allow the baby’s head to flex optimally for delivery.
Cephalopelvic disproportion (CPD) is a clinical situation in which the baby’s head cannot pass through the mother’s pelvis. Suspected CPD is one of the standard indications for caesarean section.
Manual rotation is a procedure in which the obstetrician uses their fingers to rotate the baby’s head from OT to OA, with the goal of allowing a vaginal delivery to proceed.
Oxytocin is a drug used to strengthen contractions when labour is progressing slowly.
Impacted fetal head is the phenomenon at issue in this case. The longer a baby’s head sits in a fixed position against a maternal pelvis (particularly with continued strong pushing), the more deeply the head can become wedged. A deeply impacted head is a serious complication, both because it makes a vaginal delivery difficult or impossible, and because it makes a caesarean section more dangerous. The obstetrician who performs the caesarean section on an impacted head must dis-impact and lift the head from below before the baby can be delivered, and the maneuvers used to do so can themselves cause injury.
The facts
Meaghann Sitter was 36 weeks plus 4 days pregnant when she went into spontaneous labour on June 13, 2014. She was admitted to Lions Gate Hospital and came under the care of Dr. Karis Love, an obstetrician.
The clinical sequence over the afternoon and evening:
- 2:30 pm. Dr. Love performed an initial vaginal examination. Meaghann was 6 cm dilated, with the baby’s head at 0 station. The position (OA or OT) was disputed at trial, but the trial judge found that by 5 pm the baby was likely already in OT at 0 station, and had not moved from that position or station since the 2:30 examination.
- 5:00 pm. A nurse performed a vaginal examination and reported to Dr. Love that Meaghann was fully dilated. The nurse did not document the baby’s position or station, and neither the nurse nor Dr. Love had any recollection at trial of whether the position or station were communicated.
- 5:25 pm. Meaghann began pushing.
- 6:40 pm. A nurse called Dr. Love to advise that the contractions had slowed. Dr. Love ordered an oxytocin infusion.
- 6:45 pm. Oxytocin was started. By this point, the baby’s position and station had not been reassessed since 2:30 pm, and Meaghann had been pushing for over an hour.
- 7:00 pm. Dr. Love attended in person and performed a second vaginal examination. The baby had not descended at all since 2:30, and was now identified as being in OT position. Dr. Love attempted a manual rotation; she could not move the baby’s head at all. Dr. Love offered Meaghann two options: continue pushing for another 30 minutes with oxytocin, or proceed to caesarean section. Meaghann chose caesarean.
- 7:00 pm to 7:55 pm. Meaghann continued to push, with continued oxytocin augmentation, until she received an epidural in preparation for the caesarean. She was not specifically warned that continuing to push (particularly with oxytocin) would increase the risk of fetal head impaction.
- 8:00 pm onwards. Dr. Love performed the caesarean section. The baby’s head was, in Dr. Love’s own words, “tightly wedged” and “severely impacted” in the maternal pelvis. Dr. Love could not initially get her hand around the head to elevate and deliver. She asked an obstetrical nurse to push the head up from below. Nine minutes into the procedure, Dr. Love was able to dis-impact and deliver Abigail.
Abigail was delivered with bruising on her left arm, shoulder, and head. Approximately 24 hours later, seizure activity was suspected, and she was transferred to BC Women’s and Children’s Hospital. Imaging there established three skull fractures on the left side of her head and extensive brain damage. Abigail continues to live with the consequences of the birth trauma brain injury.
The standard of care findings
The trial judge identified a series of standard-of-care breaches by Dr. Love. The breaches form a chain rather than a single failing.
Failure to assess position and station at 5 pm. When the nurse reported full dilation, the position and station should have been assessed and communicated. Had Dr. Love known at that point that the baby was in OT and had not descended since 2:30, the trajectory of the labour would have been different.
Failure to recognize the implications of the lack of progress. By 5 pm, the baby had been at 0 station for over two hours of strong contractions, with no descent. That fact, combined with the OT position and Meaghann’s small pelvis, was a red flag for cephalopelvic disproportion.
Inappropriate oxytocin administration. At 6:40 pm, Dr. Love ordered oxytocin to strengthen the contractions, without first reassessing the baby’s position and station. The oxytocin then increased the force of Meaghann’s pushing efforts. The trial judge found that the oxytocin contributed to the deeper impaction of the baby’s head.
Failure of informed consent at 7 pm. Once the caesarean was ordered, Meaghann should have been specifically warned that continuing to push (particularly with oxytocin) would increase the risk of fetal head impaction. She was not. Without that warning, she continued to push until 7:55 pm. The trial judge found that the additional pushing during this period, augmented by the oxytocin, materially contributed to the impaction.
Failure to prepare the team for an effective dis-impaction. When the impaction became apparent during the caesarean, Dr. Love asked the nurse to push the head up from below. The trial judge found that the push was ineffective for several reasons (the nurse was not given enough time to prepare, the mother’s leg position was sub-optimal, and the head was already deeply wedged), and that the underlying problem was Dr. Love’s failure to anticipate the impaction and adequately prepare the team for it.
The dis-impaction maneuver itself. The trial judge found, on Dr. Love’s own evidence and the standard-of-care expert evidence, that the dis-impaction maneuver Dr. Love used was a breach of the standard of care, both in how it was performed and in its timing before less dangerous maneuvers were attempted.
The nursing breaches were narrower but not insignificant: the failure to assess and document position and station at the 5 pm vaginal examination, and the failure to communicate those findings to Dr. Love. The trial judge apportioned 15% of the liability to the nurses and 85% to Dr. Love.
The causation analysis
The causation analysis tracks the standard-of-care chain. The trial judge worked backwards from the injury:
- The skull fractures and brain damage were caused by Dr. Love’s hand during the dis-impaction at the caesarean. Dr. Love admitted causing one fracture and likely a second; she denied causing the third, attributing it to the nurse’s push from below. The trial judge rejected that argument and found, on the probabilities, that all three fractures were caused by the same hand and the same movement.
- The dis-impaction maneuver was necessary because the baby’s head was deeply wedged in the pelvis at the time of the caesarean.
- The depth of the impaction was the result of approximately 90 minutes of continued pushing, augmented by oxytocin, on a head that was in OT at 0 station and not descending.
- That 90 minutes of pushing occurred because Dr. Love did not, at 5 pm or 6:25 pm, properly assess the lack of progress, recognize the suspected CPD, or warn Meaghann that continued pushing in this configuration was dangerous.
The trial judge found that, but for these breaches, the caesarean would likely have been performed approximately 35 minutes earlier (at 6:25 pm rather than 7:00 pm), and Meaghann would have avoided approximately 90 minutes of pushing on an impacted head. The reduced impaction would have made the caesarean dis-impaction less dangerous, and the injury would not have occurred to the same extent.
The causation analysis is doctrinally important because it does not require the plaintiffs to prove that any single breach by itself caused the injury. The breaches operated cumulatively, and the trial judge was satisfied that the cumulative effect was a material contribution to the harm.
The Ontario application
Although a BC decision, Gilmore applies in Ontario. The standard-of-care framework for medical negligence is the same across Canadian common law jurisdictions, drawing on a body of case law that includes Supreme Court of Canada decisions binding everywhere. The informed consent framework is the framework set out in Reibl v Hughes, [1980] 2 SCR 880, which is national in scope and applies in active labour management as it does in elective procedures. Apportionment of liability among multiple defendants follows the Negligence Act, RSO 1990, c N.1, in Ontario, with substantively similar provincial legislation in BC.
The substantive analysis in Gilmore is portable to Ontario in three respects:
- The chain-causation framework, where multiple SOC breaches operate cumulatively to produce the injury, is doctrinally well-established
- The application of Reibl v Hughes informed consent in real-time labour management — the obligation to provide the patient with information needed to make decisions about her own care, including information about how her behaviour during labour might affect risk
- The apportionment between physician and nursing defendants where both contributed to the harm, but where the physician’s contribution was substantially greater
The doctrinal context
Gilmore sits within a body of Canadian birth injury jurisprudence that includes cases at every level of the appellate hierarchy. Within the case-comment library on this site, it sits alongside several other decisions that engage the major patterns of obstetrical negligence:
- Woods v Jackiewicz, an $11.5 million Ontario judgment for a mismanaged twin pregnancy that produced cerebral palsy in one of the twins (a case I conducted as lead counsel)
- KY v Bahler, an Ontario decision involving a failed referral of a high-risk pregnancy
- Rathan v Scheufler, an Ontario decision on a brachial plexus injury caused by excessive force during a shoulder dystocia delivery
The four cases together illustrate four substantively different patterns of obstetrical negligence (mismanaged multiples; failed referral; excessive force in shoulder dystocia; impacted fetal head from cumulative mismanagement of labour). Each turns on different clinical facts and different SOC analyses, but the legal framework is the same.
Why this case matters
For families. A birth injury claim does not depend on identifying a single decisive moment of negligence. Where the harm is the cumulative result of a chain of clinical decisions, each of which contributed to the eventual injury, the legal framework can capture that. The chain causation analysis in Gilmore is doctrinally well-suited to the realities of obstetrical practice, where labour management is a series of decisions made over hours rather than a single intervention.
For obstetricians. The case is a reminder of the importance of in-person reassessment of position and station at decision points in labour, particularly where progress has stalled or where the clinical picture is changing. It is also a reminder of the importance of informed consent in real-time: where a treatment plan changes during labour (here, the decision to proceed to caesarean), the patient is entitled to information about how her behaviour during the interim might affect risk. Continuing to push after a caesarean has been ordered is a real-time decision, and the patient needs the information necessary to make it.
For nursing staff. The 15% apportionment to the nursing defendants, while smaller than the obstetrician’s share, is not nominal. It reflects the trial judge’s finding that the nurses’ failure to assess and document position and station at the 5 pm vaginal examination, and to communicate those findings to the obstetrician, contributed to the broader chain of mismanagement. Documentation and communication at handoff points are not bureaucratic formalities; they are part of the standard of care.
For lawyers screening birth injury claims. The chain-causation analysis in Gilmore is a useful template. A claim that initially looks like it depends on whether the dis-impaction maneuver itself was negligent (a difficult question on which expert evidence will often divide) becomes much stronger when the analysis traces back through the events that produced the impaction in the first place. Earlier SOC breaches, even minor ones, that contribute to the conditions in which the dangerous maneuver became necessary can be material to the causation analysis, and screening should not stop at the most proximate event.
For more on how birth injury claims are evaluated and pursued, see the Birth Injury Lawyer Toronto page. For two other BC cases adopted into the case-comment cluster on this site, see Massie v PHSA: An Imposter Nurse and the Limits of Class Certification and Sheoran v Interior Health Authority: A Hospital’s Duty of Care to Its Medical Staff. For an overview of how malpractice claims are structured generally, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: August 10, 2023
Jurisdiction: Supreme Court of British Columbia
Citation: Gilmore v Love, 2023 BCSC 1380 (CanLII)
