Pinch (Guardian ad litem of) v. Morwood, 2017 BCCA 234 (CanLII)

The defendants failed to overturn the trial judgment awarding damages over failings in pre-natal maternal monitoring.

Date Heard: May 25th, 2016 | Full Decision [PDF]

Appeal by the defendant nurse and physician from the trial judge’s findings that their conduct caused the infant plaintiff’s mother to suffer an eclamptic seizure resulting in the infant plaintiff being born severely disabled. The Court of Appeal of British Columbia unanimously upheld the lower court decision, finding that the judge’s findings of fact were supported on the evidence.

Facts & Trial Decision
The infant plaintiff’s mother was 28 weeks pregnant when she attended at the defendant hospital with increasing pain in her head and neck, along with visual disturbances, and light sensitivity. She was seen by the defendant nurse and the emergency room physician, who was a family doctor with training in obstetrics. She was evaluated and discharged with a diagnosis of neck strain. Two days later, the plaintiff’s mother had an eclamptic seizure and underwent an emergency C-section. Rebecca, the infant plaintiff, was born with severe spastic quadriplegic cerebral palsy and with developmental and cognitive impairment.
At trial, it was not contested that Rebecca’s condition was caused by maternal seizures that were triggered by eclampsia. In addition, it was accepted that preeclampsia is well known condition of pregnancy and something that the defendants would be aware of in general. After several weeks of testimony from several experts, the trial judge concluded that the infant plaintiff’s mother was suffering from preeclampsia when she attended the defendant hospital, that her blood pressure (“BP”) was not taken and therefore her condition was not diagnosed. The defendant nurse testified that she had taken the BP, and that it was normal, but that in the rush of another emergency forgot to write it down, contrary to her common practice. Madam Justice Dillon ultimately found that the BP had likely not been taken by the nurse and had she taken a reading, the infant’s mother would have been diagnosed with preeclampsia. Rather, the trial judge found that the defendant nurse likely took some vitals and documented those vitals, was called away to an emergency and simply forgot to complete taking the BP when she returned, which is why it was not documented in the chart. The trial judge ultimately preferred the evidence of the infant’s mother who testified that she does not recall her BP being taken or her sleeves being rolled up to take her BP. The trial judge also cited preferring the plaintiffs’ experts evidence that, given the etiology of eclampsia, that the BP would likely have been abnormal if taken.

The Court also found that had the defendant doctor taken a proper history and asked the right questions, the infant mother’s condition would also have been diagnosed. To his detriment, and ultimately to the detriment of the plaintiffs, he accepted the nurses reassurance that vitals were normal to include that a BP was taken and was also normal. As a result, the Court found that both the nurse and the doctor failed to meet the standard of care reasonably expected of them and apportioned liability 70% to the nurse, for whom the hospital was vicariously liable, and 30% to the doctor.

The defendants appealed the factual findings of the trial judge stating that she made factual errors relating to the vital signs and the defendants assessments. In addition, the defendant nurse appealed the apportionment of liability.

The Court of Appeal unanimously held that the trial judge’s findings of fact were supported by the evidence. The Court of Appeal started off by saying that this case was very much fact driven and rested on the trial judge making several findings of fact. As a result, the appeal court’s “task is not to ask whether the judge got it “right”, but rather to ask whether it has been demonstrated that the judge got it wrong by committing reviewable errors: errors of law or palpable and overriding errors of fact. We must approach this task with a high degree of deference to the factual conclusions reached by the trial judge” (@ para. 13). The Court of Appeal also pointed out that not only did the trial judge have to make several findings of fact, but she had to make findings of fact in the face of conflicting evidence, much of which was not contemporaneously documented. As a result, the trial judge was often left with having to weigh the evidence before her and ultimately preferred the evidence of the plaintiffs where there were factual inconsistencies. To the extent that she preferred one sides evidence over the other, the Court of Appeal found that the trial judge properly set out why she preferred one sides reconstruction of events over another.

One of the reasons why the trial judge found that the BP was likely not taken and/or was likely abnormal was because the machine used to take vitals was beeping and was then turned off. The judge made the finding that if the plaintiff mother’s BP was the last reading, and assuming the BP cuff had been removed, there would have been no beeping if the reading was normal. On appeal, this was found to be a palpable error by the trial judge as the monitor was in fact beeping because it had malfunctioned not because of an abnormal reading. However, the appeal court found that, although it was a palpable error, it was not overriding because the judge properly assessed the totality of the evidence before her and this was only one small factor. Ultimately, the trial judge’s conclusions that the nurse did not take the BP was premised on several findings of fact and the monitor played a small role, and was in fact never even mentioned in the trial judge’s summary of factors for liability. As such it was not an overriding error sufficient to disturb her findings of negligence.
With respect to the trial judge’s assessment of the evidence as against the defendant doctor, the Court of Appeal again found that the trial judge made findings of fact, largely based on credibility and the evidence before her. As such, she was entitled to deference in her findings that the doctor had not asked the relevant questions of the plaintiff which would have elicited the necessary information for a proper diagnosis.

Finally, with respect to apportionment of liability, the Court of Appeal did not disturb the trial decision. Given that the nurse’s negligence in not taking a BP was a serious error in the circumstances of this case, the trial judge’s findings on apportionment was not grossly disproportionate.

Counsel for the Respondents: P.T. McGivern, S.K. Raab, L.A. McGivern

Counsel for the Appellants: K.J. Jakeman, C.B. Elder, C.L. Woods, Q.C., J.M. Poole

Read the full decision [PDF]
Written by

Maria Damiano is an associate at the firm Paul Harte Professional Corporation. Since 2003, Maria’s practice has been restricted exclusively to the area of medical malpractice assisting victims of serious medical harm across Ontario and Canada. Maria was called to the Bar in 2002 and is a graduate of Osgoode Hall Law School. As part of her legal training, Maria studied at the University of Bologna Law School in Italy, the oldest law school in the Western world.

Maria is the President-Elect of the Ontario Trial Lawyers Association.