The high court clarified the test for establishing responsibility for injuries caused by negligence
In a split decision on Friday, the Supreme Court of Canada dismissed two appeals: one filed by an anesthesiologist whom the Ontario Court of Appeal had found owed a woman $12 million for causing her severe and permanent brain damage during an emergency cesarean section, and another filed by the woman and her family.
The plaintiffs had originally sued the anesthesiologist, two obstetricians, and the hospital where the woman, Sophia Hemmings, was treated, for negligence. By the time the case reached the SCC, every defendant besides the anesthesiologist had been let off the hook, prompting the plaintiffs to appeal to the high court.
In Hemmings v. Padmore, the SCC determined that the anesthesiologist, Dr. Neil Jamensky, was liable by applying and clarifying a two-part test to establish liability for injuries caused by negligence. The second part of the test requires courts to ask whether the injury was a reasonably foreseeable result of the negligent conduct.
Friday’s decision contained three sets of reasons. The majority’s reasons, by SCC Justices Malcolm Rowe and Michelle O’Bonsawin, found that the obstetrician who treated her for much of her pregnancy, Dr. Lloyd Padmore, and a nurse at the hospital were not liable for Hemmings' condition, because their wrongful conduct was not sufficiently connected to her injuries. Justice Mahmud Jamal agreed.
In a second set of reasons, Justice Sheilah Martin agreed with the majority’s decision to dismiss Jamensky’s appeal. However, Martin said that she would have found both Jamensky and Padmore liable for Hemmings' injuries. Justices Andromache Karakatsanis and Mary Moreau joined Martin.
SCC Chief Justice Richard Wagner wrote a third set of reasons, stating he would have allowed Jamensky’s appeal. The chief justice said the trial court had produced a flawed analysis of the case, so it would be “impossible to sustain a finding of liability against any of the defendants.”
In a statement, Amani Oakley, one of the lawyers at Oakley & Oakley P.C. who represented Hemmings and her family, said her clients had waited 17 years for the ruling.
“For all that time they have lived with the consequences of a serious and massively life-altering injury which simply should never have happened,” Oakley said. “This decision means that the resources Sophia needs for her lifelong care are finally secure.”
However, Oakley said she was disappointed that the SCC majority ultimately found neither Padmore nor the hospital nurse liable for Hemmings' injuries.
“It goes without saying that patients depend on their doctors and nurses for full and timely information about the risks they face, so they can make informed decisions about their own bodies and their care,” Oakley said. “A ruling that limits the responsibility of healthcare professionals who fail to share that information, or fail to take necessary and easily accomplished steps to look after their patients, risks weakening accountability.”
Darryl Cruz, one of the McCarthy Tétrault lawyers who represented Jamensky and Padmore, said Friday’s ruling seems to confirm and clarify well-established principles.
“The divided success on these appeals and the dissenting opinions demonstrate the complexity of medical negligence cases, and we can expect this decision to be the subject of both judicial and academic commentary in the years to come,” Cruz added.
Counsel for the Scarborough Health Network, where Hemmings had her C-section, did not immediately respond to a request for comment.
The C-section and lower court rulings
Hemmings discovered she was pregnant in the fall of 2008. Over the course of her pregnancy, she was treated by multiple doctors, including Padmore, Dr. Carol Peng, and Dr. Sharon O’Brien.
According to the SCC, Hemmings was morbidly obese, which made her a higher-risk patient. However, Padmore, who was her obstetrician through most of her pregnancy, did not inform Hemmings of the medical risks of her pregnancy, including that she was at risk of needing a C-section and suffering anesthetic complications and cardiac arrest.
Padmore was not involved in Hemmings’ delivery. Instead, Hemmings was seen by Peng and O’Brien; O’Brien eventually conducted her C-section after she determined the baby’s head was too large to pass through the birth canal.
Jamensky, the anesthesiologist, initially administered a regional anesthetic to help reduce Hemmings’ pain. However, Hemmings began to panic and move around the operating table. O’Brien and Jamensky asked Hemmings’ sister to enter the room and reassure her. The doctors also gave Hemmings a sedative.
Because Hemmings was panicking, Jamensky decided to administer a general anesthetic. He then had to intubate Hemmings to help with her breathing. His first attempt failed, but his second succeeded.
The baby was delivered safely, but Hemmings suffered a cardiac arrest and had to be resuscitated. Because her brain lacked sufficient oxygen, she suffered severe and permanent brain damage. She was 29 years old.
Through a litigation guardian, Hemmings, along with her family, sued Scarborough Hospital and the practitioners involved in her pregnancy and C-section for negligence. The claim against the hospital asserted that it was vicariously liable for the conduct of a nurse who had held a consultation with Hemmings over the phone a few weeks before the delivery, and directly liable due to its record-keeping procedures.
The Ontario Superior Court of Justice found Padmore and Jamensky responsible for Hemmings’ injuries, and the hospital responsible for the nurse’s negligence and for failing to communicate Hemmings’ medical history.
On appeal, the OCA ruled that Padmore and the hospital were not legally responsible for the injuries. The appellate court determined that damages of $12 million, which the parties agreed to at the outset, should be paid by Jamensky alone.
The SCC’s reasons
Writing for the majority, Rowe and O’Bonsawin said that to successfully argue a negligence claim, a plaintiff has to prove that the defendant owed them a duty of care, that the defendant breached that duty, that the plaintiff suffered harm, and that the harm was “caused, in fact and in law, by the defendant’s breach.”
There are two steps for determining whether this last requirement has been met. First, a court must assess whether the defendant’s conduct was the factual cause of the harm. Second, the court must determine whether the injuries “are too remote from the defendant’s conduct to assign liability.”
The justices noted that across Canada’s case law, this second inquiry has gone by various names, including “legal causation,” “proximate cause,” “proximity,” and “cause-in-law.”
“These terms all refer to the same element of the negligence analysis and, for clarity, we will refer only to remoteness,” the justices said. This analysis entails asking whether the plaintiff’s injury was “a reasonably foreseeable consequence of the defendant’s negligent conduct.” The justices further clarified that “reasonably foreseeability is not mere possibility, but some real risk that would not be dismissed by a reasonable person as far-fetched.”
They said it is essential for factual causation and remoteness of damage to “remain analytically distinct and be treated separately.”
The justices said the trial judge had applied this test incorrectly, and therefore failed to properly assess whether Padmore and the nurse could have reasonably anticipated Hemmings’ injuries.
“Ms. Hemmings’ injuries were too remote from the wrongful conduct of Dr. Padmore and Nurse San Juan to hold either of them liable,” the justices concluded.
However, they agreed with the trial court’s finding that without Jamensky’s negligent decision to administer a general anaesthetic, Hemmings would not have suffered cardiac arrest.
