Ontario Court of Appeal orders new malpractice trial for obstetrician

Trial judge said no evidence called on C-section time, but conflicting evidence was presented

Ontario Court of Appeal orders new malpractice trial for obstetrician
Obstetrical emergencies require physicians to make decisions on mode of delivery

The Ontario Court of Appeal has ordered a new malpractice trial to hear the case of an obstetrician accused of causing catastrophic injuries to an infant after not resorting to a Caesarian section during a problematic delivery. The original trial judge’s failure to consider conflicting evidence on the time in which a C-section could be completed prevented a proper finding on the cause of the infant’s injuries, said the court. 

In Farej v. Fellows, 2022 ONCA 254, Dr. George Fraser Fellows was the obstetrician that delivered Amara Idris and Romodan Farej’s three children. However, their third child, Sabrin Farej, suffered severe brain damage due to acute, near-total oxygen deprivation before her birth. Sabrin was left with permanent disabilities leaving her totally dependent on her family and caregivers for the rest of her life.

Sabrin’s parents and siblings sued Fellows, alleging that he was negligent during Sabrin’s delivery. Trial focused primarily on the 26 minutes before delivery when, faced with an obstetrical emergency, Fellows decided to have Sabrin delivered vaginally as opposed to an emergency C-section.

The plaintiffs alleged that, in choosing to do so, Fellows fell below the applicable standard of care since the vaginal delivery took longer than the C-section and the delay “caused or materially contributed to the catastrophic injuries Sabrin had when she was born.”

Fellows remained convinced that his choice of delivery was proper, claiming that had he abandoned vaginal delivery in favour of a C-section, he “would be dealing with a dead baby.” Expert evidence of both parties conflicted as to the actual time required to complete a C-section and whether it included preparation time.

The trial judge dismissed the action, ruling that the plaintiffs had failed to establish the causal link between Fellows’ actions and Sabrin’s injuries.

On appeal, the plaintiffs argued that the trial judge’s reasons were inadequate that they did not permit meaningful appellate review and that the interests of justice called for a new trial.

The appeal court agreed.

While the trial judge concluded that nothing Fellows did caused the injuries, the reasons did not illustrate how she arrived at her conclusion, said the appeal court. The court found that despite conflicting evidence on the time required to complete a C-section delivery, particularly on preparation time, the trial judge wrongly indicated that there was “no evidence called” on the issue.

“Without arriving at a time, or at least a timeframe, within which the emergency Caesarean section could have been completed, the finding of no causal connection between Dr. Fellows’ actions and the injuries is unintelligible,” said the court.

Despite several avenues through evidence to conclude a lack of material difference in the method of delivery, there was nothing in the trial judge’s reasons to conclude that she followed one, said the court. Due to inadequate reasons, the appeal court concluded that it could not meaningfully review the finding of failure to prove causation, and therefore the trial judge’s judgement could not stand.

As such, the Court of Appeal ordered a new trial so that the interests of justice were served.

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