On April 12, 2019, a Kitchener jury returned a verdict in favour of the plaintiffs in Woods v Jackiewicz. The trial had run for three weeks before Justice Robert Reid of the Superior Court of Justice. The plaintiffs were Kelsey Woods, who was born in 1991 with cerebral palsy and quadriplegia after a premature delivery at 27 weeks gestation; her twin sister Karli, who was not affected; her mother Bernice Booth; and her father Michael Woods. The defendant was Allan Jackiewicz, a Niagara Falls obstetrician who had been Booth’s treating physician through her twin pregnancy. The jury found that Jackiewicz had breached the standard of care in his management of an unscheduled appointment on July 5, 1991, when Booth presented at 27 weeks gestation with severe abdominal pain and excessive weight gain. The jury also found that the breach caused Kelsey Woods’ brain damage. The damages, which had been agreed upon at $11.5 million before the verdict, were entered against the defendant.
The case was one of the largest medical malpractice jury verdicts ever recorded against a single Ontario obstetrician. It was also a case that turned on two analytical questions that recur in obstetrical malpractice litigation: whether the standard of care required the defendant to refer the plaintiff for tertiary-care specialist assessment, and whether the timely tertiary-care intervention would, on a balance of probabilities, have produced a better outcome. The jury answered both questions in the affirmative. The trial verdict was upheld unanimously by the Ontario Court of Appeal in Woods v Jackiewicz Obstetrician & Gynaecologists, 2020 ONCA 458, which is discussed separately on this site. Paul Cahill represented the family at trial.
This post focuses on the trial: the clinical context, the standard of care issue, the causation question, the role of the jury, and the verdict. A complementary piece on the appellate decision treats the doctrinal questions that the Court of Appeal addressed.
The clinical context
The clinical question at the centre of Woods v Jackiewicz was twin-to-twin transfusion syndrome (TTTS), a complication of pregnancies in which two foetuses share a single placenta (a monochorionic twin pregnancy). In TTTS, abnormal blood vessel connections in the shared placenta cause one twin (the recipient) to receive a disproportionate share of the blood and amniotic fluid, while the other twin (the donor) receives proportionately less. The recipient twin develops increasing amniotic fluid volumes around it (polyhydramnios) and can develop cardiac strain from circulatory overload. The donor twin develops decreasing amniotic fluid volumes (oligohydramnios) and can suffer growth restriction. Untreated severe TTTS carries a high mortality for both twins and a high morbidity (including brain injury, cardiac injury, and limb damage) for the survivors.
TTTS is a rare complication of twin pregnancies and a treatable one. In 1991, when the events giving rise to this litigation occurred, the standard treatment was amnioreduction: serial drainage of excess amniotic fluid from the recipient twin’s sac to relieve uterine distension, reduce the risk of premature labour, and improve placental blood flow. Amnioreduction was available at Canadian tertiary perinatal centres including McMaster University Medical Centre, the regional perinatology referral centre for the Niagara region. (Laser photocoagulation of the abnormal placental vessels, now the preferred first-line treatment for severe TTTS at most centres, was not yet in standard use in Canada in 1991.) Where TTTS is identified before progressive deterioration sets in, amnioreduction was capable of stabilizing both twins, prolonging the pregnancy toward viability, and reducing the rate of catastrophic neurological injury in the surviving twins.
The diagnostic and treatment workflow for suspected TTTS in 1991 depended on tertiary-care expertise that a community obstetrician practising outside an academic centre was not equipped to provide. The recognition of TTTS, the assessment of its severity, the decision to perform amnioreduction, the performance of the procedure itself, and the subsequent monitoring of both twins were procedures that belonged at a regional perinatology service. The community obstetrician’s role, where TTTS or any other complication of a twin pregnancy was suspected, was to refer the patient to that service promptly enough for the intervention to make a difference.
The pregnancy and the unscheduled appointment
Bernice Booth was pregnant with twins in 1991. She was under the care of Jackiewicz, who managed the pregnancy in his community practice in the Niagara region. The pregnancy had been confirmed as a twin pregnancy on ultrasound on May 28, 1991. No major abnormalities had been identified at that time.
On July 5, 1991, when Booth was 27 weeks pregnant, she contacted Jackiewicz’s office unscheduled. She was experiencing severe abdominal pain. She had also gained an unusual amount of weight in a short period. The combination of severe abdominal pain and rapid weight gain in a 27-week twin pregnancy is a clinically significant cluster of signs. Rapid maternal weight gain late in a twin pregnancy can reflect rapid accumulation of amniotic fluid, which in a monochorionic twin pregnancy points toward TTTS. Severe abdominal pain in the same context can reflect uterine distension from polyhydramnios or the early onset of premature labour.
Jackiewicz saw Booth at the unscheduled appointment. He measured the symphyseal-fundal height (SFH) for the first time during the pregnancy. SFH is the distance from the pubic symphysis to the top of the uterus, a standard low-cost bedside measurement used to assess uterine size relative to gestational age. The trial evidence established that Jackiewicz had not measured SFH at prior antenatal visits, which was itself an issue at trial. The SFH measurement on July 5 documented a uterus that was larger than expected for a 27-week pregnancy.
Jackiewicz sent Booth home to rest.
Two days later, on July 7, 1991, Booth’s symptoms had become significantly worse. She attended Niagara Hospital. By the time she arrived, her cervix was two to three centimetres dilated. She was in active premature labour. Niagara Hospital recognized the urgency and arranged her immediate transfer by ambulance to McMaster Hospital, the regional perinatology service.
At McMaster, the labour could not be stopped. The twins were delivered by emergency Caesarean section at 27 weeks gestation. Kelsey Woods, the recipient twin in what was retrospectively confirmed to be a TTTS pregnancy, suffered catastrophic brain injury. The combination of the inadequately treated TTTS and the consequences of extreme prematurity produced cerebral palsy and quadriplegia. Karli Woods, the donor twin, was not similarly affected.
The standard of care issue
The plaintiffs’ theory of liability was that the standard of care, on the facts presented at the July 5 appointment, required Jackiewicz to refer Booth immediately to McMaster for perinatology assessment. The combination of a known twin pregnancy, severe abdominal pain at 27 weeks gestation, excessive weight gain, and (when finally measured) an elevated SFH should have triggered immediate consultation with a fetal medicine specialist. The community obstetrician’s role in that moment was not to manage the situation in his own office. It was to recognize what the constellation of signs and symptoms might mean and to refer the patient to the specialists equipped to investigate further.
The defence position was that Jackiewicz’s response to the July 5 appointment fell within the range of acceptable community obstetrical practice in 1991, that the SFH measurement did not establish TTTS, and that other community obstetricians of comparable training would have managed the patient in similar fashion. The case turned on which body of expert opinion the jury accepted.
The jury found a breach of the standard of care. The defence did not challenge the breach finding on appeal; the appeal focused exclusively on causation.
The causation question
Causation in obstetrical malpractice cases of this kind is often the harder element. The plaintiff must establish, on a balance of probabilities, that a timely referral would have produced a better outcome. In a case involving TTTS in 1991, the causation analysis runs through several linked steps:
- Would a referral on July 5 have produced an assessment at McMaster?
- Would the McMaster assessment have identified TTTS?
- Would McMaster have offered amnioreduction in 1991 for a TTTS pregnancy at 27 weeks gestation?
- Would amnioreduction more probably than not have prolonged the pregnancy and reduced the risk of catastrophic brain injury to the recipient twin?
Each step was contested at trial. The defence position attacked the third step in particular. The defence’s central causation argument was that amnioreduction was not a standard offering at McMaster in 1991, that the procedure was experimental or selectively offered at that time, and that there was no direct evidence from a McMaster witness establishing that amnioreduction would have been performed for this patient.
The plaintiffs called experts who testified that amnioreduction was an established treatment for severe TTTS at Canadian perinatology centres in 1991, that the Booth pregnancy met the clinical criteria for amnioreduction at that time, and that the procedure would have been performed if Booth had been assessed at McMaster on July 5. The plaintiffs did not call a witness from McMaster Hospital specifically.
The defence sought to have the trial judge instruct the jury that it could draw an adverse inference from the plaintiffs’ failure to call a McMaster witness on the question of amnioreduction availability. The trial judge declined that instruction. The defence raised the adverse inference issue, along with the broader sufficiency of evidence for causation, on appeal.
The jury found that causation was established. The verdict on damages, which had been agreed at $11.5 million, was entered.
The trial
The trial took place over three weeks in Kitchener in March and April 2019. The presentation of expert evidence used demonstrative aids including illustrations of the fetal brain marked up by Cecil Hahn, the plaintiffs’ neurology expert from the Hospital for Sick Children. Justice Reid ruled before trial that those demonstrative aids could be entered into evidence as exhibits, over the defence’s objection that they were tantamount to filing the expert’s report.
The jury, after three weeks of evidence and submissions, found liability and entered the damages verdict on April 12, 2019. The verdict reflected the work of expert witnesses on standard of care, on causation, and on the neurology of cerebral palsy in the context of TTTS and prematurity. The jury also reflected, in a way that civil jury verdicts often do, the cumulative weight of the trial narrative on a family that had been pursuing the litigation for nearly a decade and on a community obstetrician whose practice had subsequently been the subject of CPSO regulatory attention.
The appeal
Jackiewicz appealed the verdict to the Ontario Court of Appeal. The appeal did not challenge the standard of care finding. The appeal focused on the causation question, on the adequacy of the jury charge, and on the trial judge’s refusal to give the adverse inference instruction the defence had requested. The Court of Appeal unanimously dismissed the appeal in Woods v Jackiewicz Obstetrician & Gynaecologists, 2020 ONCA 458, upholding the trial verdict in its entirety. The appellate decision is treated in a separate post on this site.
Why this case matters
For families facing twin pregnancies and other high-risk obstetrical situations, Woods v Jackiewicz is a reminder that community obstetrical care has limits and that the standard of care includes the recognition of those limits. A community obstetrician is not expected to manage TTTS in his own office. The standard of care expects him to recognize the constellation of signs that suggest TTTS or other complications of a monochorionic twin pregnancy and to refer the patient to a perinatology service that can investigate and treat. The decision to refer is itself part of the standard of care. The decision to send the patient home to rest, when the signs and symptoms warrant a tertiary-care assessment, is not.
For obstetricians, the case is a reminder that the SFH measurement and other low-cost bedside assessments matter. A community obstetrician who does not measure SFH consistently through a twin pregnancy is depriving herself of one of the inexpensive but informative tools by which abnormal foetal growth and abnormal amniotic fluid volumes are detected. The omission of the measurement is itself a category of evidence that a jury can consider.
For the broader practice of obstetrical malpractice litigation in Ontario, Woods v Jackiewicz is a foundational case on the standard of care in community obstetrics, the causation analysis in failure-to-refer cases, and the role of the civil jury in resolving competing expert evidence in cerebral palsy litigation. The trial verdict and the unanimous appellate affirmation establish that, where the expert evidence supports both the breach and the causal chain from breach to injury, a jury can and will find for the plaintiff in cases involving the kind of catastrophic brain injury that Woods v Jackiewicz presented.
Further reading
A companion post on this site addresses the Ontario Court of Appeal’s decision upholding the trial verdict, including detailed discussion of the causation analysis, the adverse inference doctrine, and the standard of review applicable to civil jury verdicts. Together, the trial post and the appeal post provide a comprehensive treatment of one of the most significant Ontario obstetrical malpractice cases of the past decade.
Trial Verdict Date: April 12, 2019
Jurisdiction: Ontario Superior Court of Justice, Kitchener
Trial Judge: Justice Clayton Conlan
Citation: Woods v Jackiewicz Obstetrician & Gynaecologists (trial verdict, jury). Pretrial procedural ruling at 2019 ONSC 2069 (CanLII).
Affirmed on appeal: Woods v Jackiewicz Obstetrician & Gynaecologists, 2020 ONCA 458
Counsel for the plaintiffs at trial: Paul J. Cahill and Samantha Shatz
Counsel on appeal: Paul J. Cahill and Christopher I.R. Morrison
