Three days after Taha Ghiassi’s birth, on the evening of Dec. 25, 2005, a nurse noted a change in colour in the baby, who appeared to be “pink and slightly yellow, which indicated that he was slightly jaundiced.” However, the nurse did not report a change in colour until the following morning to another nurse who was starting her shift.
After that nurse did a blood test, it indicated the boy had “severe hyperbilirubinemia, a higher than normal level of bilirubin in the blood.”
The boy was provided later that morning with a treatment called phototherapy — where the child is put under lights to decrease their bilirubin concentration — after the blood test. However, the boy suffered significant injuries.
“Further treatment proved unsuccessful and he developed the neurological condition kernicterus, caused by his hyperbilirubinemia,” said the ruling by justices Robert Sharpe, Katherine van Rensburg and David Brown. “As a result of kernicterus, Taha suffers from severe deficits including dyskinetic cerebral palsy, moderate to severe hearing loss, visual impairment, developmental delays, and intellectual disability.”
The ruling noted that before the trial proceeded, the parties involved had agreed upon $9.5 million in damages over the boy’s injuries, and the plaintiffs settled the claim with the doctors involved. However, the trial proceeded against the hospital and the nurse on duty the night of Dec. 25, 2005, Sandra Oswald.
“After a 12-day trial, the trial judge found that Nurse Oswald fell below the standard of care by failing to report to the resident pediatrician on duty the onset of jaundice when she noted that condition at [9 p.m.], December 25,” said the ruling.
“In her careful and detailed reasons, the trial judge found that but for Nurse Oswald’s negligence, a resident would have ordered a blood test for bilirubin at [11 p.m.]. Relying on the timing of the introduction of phototherapy on the morning of December 26 after a blood test was finally done, the trial judge found that phototherapy to reduce Taha’s level of bilirubin would have commenced not later than 2:15 [a.m.], December 26. Had that occurred, she found that Taha would not have developed kernicterus.”
The appeal by the nurse and the hospital focused on the issue of causation. The issue around the nurse’s standard of care was not appealed.
In particular, the appeal concentrated on whether the trial judge made a mistake in her finding of causation based on “on what a ‘reasonable resident’ would have done” if the nurse has reported the jaundice the night of Dec. 25 or if the trial judge was wrong in “inferring causation in the absence of expert evidence that Taha would not have developed kernicterus” if phototherapy had started on Dec. 26 at 2:15 a.m.
Ultimately, the judges concluded that the trial judge had not erred.
“The central issue on this appeal is whether the trial judge erred in finding that it was more likely than not that Taha’s kernicterus would have been prevented had phototherapy been initiated at 2:15 [a.m.] on December 26,” said the ruling.
“The only expert evidence available, combined with the evidence as to how Taha’s condition progressed from the point at which jaundice first appeared to the point at which he began to show signs of neurological damage, provided a solid factual foundation for the inference the trial judge drew."
Brooke MacKenzie, a lawyer at MacKenzie Barristers, who was co-counsel on the case with Gavin MacKenzie and Barbara Legate, says she is pleased with the ruling.
“I think the Court of Appeal’s ruling, in addition to concluding the matter in favour of our client, who got significant compensatory damages for the injury he suffered shortly after birth, confirms some important principles about the law of causation and applies them in the context of this case in a way that helps to clarify the law and addresses some of the common arguments that defendants raise on appeal and at trial related to the law of causation,” says MacKenzie.
The most important issue in the case, she says, relates to “inference causation.” The trial judge made a finding that Taha’s injury was caused by the defendants’ negligence, without having direct or specific evidence to that effect.
“It’s common that defendants will raise the objection that there is no evidence that the plaintiff would have been OK or the plaintiff would not have suffered the injury but for the defendant’s negligence. And, as I am sure you can imagine, it can be very difficult to prove what would have happened in this but-for world but for the negligence,” she says.
In Snell v. Farell, she says, the Supreme Court of Canada found that direct evidence or scientific proof of causation is not required, but the court “can draw an inference when there is a factual foundation to infer that there was causation, and particularly if the defendant has not called evidence to the contrary.
“What happened here was that there was a delayed diagnosis and I think these issues are most challenging to deal with in delayed diagnosis cases,” she says.
“We were pleased that the Court of Appeal agreed that the trial judge could conclude that the injury wouldn’t have occurred but for the negligence, when there was the factual foundation of all the scientific evidence and the expert’s testimony as between the 9 p.m. and midnight window, and because the defendant didn’t call any evidence to the contrary. The defendant didn’t have a contrary theory that in fact the injury was caused by something else; they were just counselling on, ‘Well, the plaintiffs haven’t proven it.’”
The appeal highlights how complicated medical malpractice claims such as this one can be, as the issues of standard of care and causation are "notoriously in dispute," said Darcy Merkur, a partner at Thomson, Rogers Barristers and Solicitors, in a written statement.
“Anyone with a claim involving a compromised baby must make sure to hire a plaintiff's personal injury lawyer with the experience and resources to take the claim from beginning to the end of trial then appeal. In this case, the dismissal of the appeal finally ends this case as the comprised baby enters his teens," he said.
Simon Clements and Jessica DiFederico, who acted for the applicants in the case, said they could not provide comment on the ruling.
Editor's note: Story updated Sept. 24, 2018 at 4:41 p.m. to include comment from Darcy Merkur.