IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital,

 

2009 BCSC 494

Date: 20090409
Docket: S032599
Registry: Vancouver

Between:

Eric Victor Cojocaru, an infant by his Guardian Ad Litem,
Monica Cojocaru, and the said Monica Cojocaru

Plaintiffs

And:

British Columbia Women’s Hospital and Health Center,
Dr. Dale R. Steele, Dr. Jeremy A. Green, Dr. Jenise Yue, Dr. Jennifer
Muir, Dr. Fawaz Edris, C. Scott, C. Wong, F. Bellini, M. Voerwold,
K. Gleeson, C. MacQueen, Jane Doe and John Doe

Defendants


Before: The Honourable Mr. Justice Groves

Reasons for Judgment

Counsel for the Plaintiffs:

P.T. McGivern,
D.A. Shugarman,
and A.E. Howell

Counsel for the Defendant Physicians:

P.M. Willcock
and M.K. Gill

Counsel for the Defendant Hospital:

C. Woods, Q.C.
and A. Howden-Duke

Date and Place of Trial/Hearing:

September 10-14, 17-21, 24-28, 2007,
October 1-3, 9-12, 22, 2007,
December 3, 2007,
and January 9-11, 2008

 

 

Vancouver, B.C.

Further Submissions of the Plaintiffs:

November 10, 2008

Further Submissions of the Defendants:

November 24, 2008

Further Reply Submissions of the Plaintiffs:

December 5, 2008

Table of Contents

INTRODUCTION.. 2

ISSUES.. 3

THE FACTS.. 5

THE CONSENT ISSUES.. 7

The Law – Informed Consent 8

Dr. Yue – Consent to Prostaglandin Induction. 16

Dr. Yue – Consent to VBAC.. 23

Causation – The Law.. 36

Causation – The Evidence. 38

THE MALPRACTICE ISSUES.. 42

Duty and Standard of Care – The Law.. 42

The Claims Against Dr. Yue – Malpractice. 45

The Claims Against Dr. Edris & Dr. Steele. 48

The Claim against the Nursing Staff – Nurse MacQueen. 53

The Claims against the Nursing Staff – Nurse Bellini and Nurse Voerwold. 54

Causation – The Law.. 63

Causation – The Evidence. 64

DOES THE LAW BAR A CLAIM TO DAMAGE DONE WHILE ERIC WAS A FETUS?. 66

DAMAGES.. 67

The Nature of the Injury. 67

NON-PECUNIARY DAMAGES.. 71

Eric Cojocaru. 71

Monica Cojocaru. 74

PECUNIARY DAMAGES.. 74

Future Income Loss. 74

Loss of Interdependent Relationship. 83

Future Cost of Care. 86

The Law.. 86

Care Analysis. 92

In Trust Claim.. 99

QUANTUM.. 105

INTRODUCTION

[1]                Monica Cojocaru, her husband Marcel Cojocaru and their son Mark, born in 1992, arrived in Canada in December 2000, hoping to start a new and better life here.  Mr. and Ms. Cojocaru were Romanian citizens immigrating to Canada.  They chose Vancouver specifically because Ms. Cojocaru’s brother and family had immigrated here in previous years. 

[2]                Monica Cojocaru had a difficult birth with Mark and required a caesarean section for delivery.  As a result of Mark being born with a cleft palate, Ms. Cojocaru struggled with his care and became a very protective and concerned mother. 

[3]                Ms. Cojocaru did not believe that she would be able to have another child, after Mark’s birth.  Fortunately for her, just prior to moving to Canada, in the fall of 2000, she received the surprising news that she was again pregnant.  Although excited about the prospect of having another child to complete her family, she was cautious and concerned.  She made efforts in Romania to have the best possible care for the birth of her new child.  She anticipated giving birth in Romania, again by caesarean section. 

[4]                The immigration to Canada came on suddenly, although it had been requested previously and the move to Canada during the pregnancy, although not ideal, happened.  Upon arrival in Canada, Monica Cojocaru met Natalie Geller.  Ms. Geller spoke Romanian and a friendship developed.  Ms. Geller and Ms. Cojocaru discussed the pregnancy and as Ms. Cojocaru had no Canadian doctor, Ms. Geller introduced her to her general practitioner, who then referred Ms. Cojocaru to Dr. Jenise Yue, an obstetrician. 

[5]                Ms. Cojocaru was ten days overdue for her birth when she was admitted to British Columbia Women’s Hospital (“BC Women’s Hospital”) on May 21, 2001.  This was a day on the May long weekend.  Additionally, BC Women’s Hospital, and other hospitals in British Columbia, were under job action by the Hospital Employees Union (“HEU”). 

[6]                When Ms. Cojocaru was admitted to the hospital, she was assessed by an admitting nurse, C. MacQueen, and she was given an induction by a Dr. Fawaz Edris, then a resident of the hospital.  She was to be supervised in the hospital by Dr. Dale R. Steele, who was the obstetrician on rotation that day for Dr. Yue. 

[7]                In the latter part of her labour, Ms. Cojocaru was to be attended to by Nurse M. Voerwold and Nurse F. Bellini. 

[8]                Tragically, Ms. Cojocaru did not receive the care she should have leading up to and during her stay at BC Women’s Hospital on May 21, 2001.  While in a situation of being virtually unsupervised, although a high risk patient, her uterus ruptured and her son Eric Cojocaru suffered acute asphyxial insult.  As a result, Eric was born that day with significant brain damage. 

[9]                I have concluded that Dr. Jenise Yue did not obtain Ms. Cojocaru’s informed consent to a vaginal birth after caesarean section (“VBAC”) or to a prostaglandin induction.  Dr. Yue also fell below the standard expected of her in recommending VBAC. 

[10]            I have concluded that the care provided during her hospitalization by Dr. F. Edris and Dr. Steele falls below the standard of care expected of physicians.  Each of the three named doctors were negligent and are liable for damages to the plaintiffs. 

[11]            Additionally, I have concluded that Nurse F. Bellini was negligent in the lack of care that she provided to Ms. Cojocaru and she is also liable for damages suffered by Ms. Cojocaru and Eric Cojocaru. 

[12]            The claims against Dr. Muir, C. Scott, C. Wong, and K. Gleeson were not dealt with at trial.  The claims against Nurse C. MacQueen and Nurse M. Voerwold are dismissed. 

ISSUES

[13]            There are a number of issues to be determined in this case. 

1.      As against Dr. Yue: 

·         Did the plaintiff provide an informed consent to having a prostaglandin induction; 

·         Did the plaintiff provide an informed consent to having a VBAC delivery; 

·         Did Dr. Yue fall below the standard expected of her in recommending VBAC as an option available to Ms. Cojocaru, given the uncertainties associated with the orientation of the scar from the 1992 caesarean section? 

2.      As against Dr. Edris: 

·         Did Dr. Edris fall below the standard expected of him when he proceeded with the prostaglandin induction in the face of an unknown uterine incision orientation? 

3.      As against Dr. Steele: 

·         Did Dr. Steele fall below the standard expected of him in: 

(a)   Authorizing Dr. Edris to proceed with the induction in the face of an unknown uterine scar orientation; 

(b)   Failing to attend upon Ms. Cojocaru generally, and specifically when it was reported to him that she was very distressed with her contractions and was having frequent contractions (six in ten minutes); 

(c)   Failing to remain in the hospital and to be available to respond to any emergency given that he was the on-call physician responsible for providing emergency services? 

4.      As against nursing staff: 

·         Did Nurse C. MacQueen fall below the standard expected of her in failing to notify the attending physician Dr. Edris of the unknown orientation of the uterine scar and in failing to communicate to the attending physician Ms. Cojocaru’s request for a repeat caesarean section; 

·         Did Nurse M. Voerwold and\or Nurse F. Bellini fall below the standard expected of her\them in: 

(a)      Failing to properly monitor Ms. Cojocaru during her labour;  

(b)      Failing to communicate the concerns of the patient and the patient’s family and to investigate the repeated requests for a repeat caesarean section; and  

(c)      Failing to notice and report unusual signs potentially indicative of uterine rupture\dehiscence? 

5.      With respect to all the defendants - Causation: 

·         Did the negligence of the defendants cause or contribute to the injuries suffered by the plaintiffs? 

6.      Damages: 

·         What amount should be awarded to the infant plaintiff (Eric) for non-pecuniary damages; 

·         What amount should be awarded to Ms. Cojocaru for non-pecuniary damages; 

·         What amount should be awarded to the infant plaintiff for lost earning capacity; 

·         What amount should be awarded to the infant plaintiff for loss of interdependent relationship; 

·         What amount should be awarded to the infant plaintiff for future cost of care; and  

·         What amount should be awarded to Ms. Cojocaru under her “in trust” claim? 

THE FACTS

[14]            Monica Cojocaru was born on August 5, 1968 in Romania.  She met her husband Marcel at University, and they were married in Romania.  Mark, their first son, was born in Romania, by way of caesarean section, on November 19, 1992.   

[15]            The caesarean section was carried out by Dr. Clepce, a Romanian obstetrician.  He performed a caesarean section because “the birth didn't progress, and the situation that I was facing was called, in medical terms, fascia metrosacral [sic] presentation of the baby”.  As Mr. Cojocaru explained it, they were advised that the baby’s head was not in the right position and so a caesarean section had to be performed. 

[16]            During the delivery of Mark, Ms. Cojocaru overheard the medical staff speaking about how Mark was delivered and, specifically, how the cord was wrapped around his neck.  She overheard one of the team remark to another words to the effect that “It’s just as well that they delivered him by caesarean section as the cord was around the neck”.  This is confirmed in the operative report from Dr. Clepce. 

[17]            The caesarean section was uneventful, and Ms. Cojocaru recovered from it without incident. 

[18]            Following her delivery of Mark, Ms. Cojocaru was advised by Dr. Clepce that her next delivery should be by way of repeat caesarean section.  This was for a number of reasons, including the fact that her chances of having another baby had already been diminished because of the removal of her ovary in 1991, and because of the risks associated with the trial of labour following a prior caesarean section. 

[19]            In light of this advice, and in keeping with the understanding which she had developed while growing up in Romania (“once a caesarean, always a caesarean”), Ms. Cojocaru was committed to having a repeat caesarean section for the birth of her second son before coming to Canada.

[20]            Mark Cojocaru was born with a cleft palate, a “malformation” which caused a great deal of stress and anxiety for not only Mr. and Ms. Cojocaru, but also for their respective families. 

[21]            In Romania, at that time, the existence of physical disabilities of any sort was a matter of significant shame.  Children with disabilities were abandoned or hidden away.  Their very existence was kept a secret from friends.  Family members were sometimes prevented from visiting.  In the case of Mark Cojocaru, Ms. Cojocaru was visited in the hospital by a physician asking her to sign the papers required to, in effect, abandon her baby to an orphanage.  She refused.  She then struggled through a reluctant medical system to make arrangements to have Mark’s “malformation” surgically corrected.  When in hospital for this, she witnessed a room full of children from an orphanage who had been abandoned by their parents because of similar problems.  In addition to Ms. Cojocaru’s evidence, her brother and sister-in-law Mr. and Mrs. Sarban, testified of negative Romanian attitude towards those born with physical handicaps.  The Sarbans and the Cojocarus testified to almost never seeing any disabled people in the community while they were growing up.

[22]            The past difficulty with Mark, and her struggle to care for him in Romania, is reflected in the extreme anxiety expressed by Ms. Cojocaru to Dr. Yue during their first meeting.  As a result of Ms. Cojocaru’s anxiety, Dr. Yue organized a detailed ultrasound to look at the fetus in order to check for problems.  She noted Ms. Cojocaru as a very concerned, anxious parent. 

[23]            Ms. Cojocaru's due date was May 11, 2001. 

[24]            Because she went past her due date by ten days Dr. Yue arranged for an induction of labour with prostaglandin gel.  I have concluded Dr. Yue did not explain any of the risks associated with prostaglandin induction to Ms. Cojocaru, nor did she explain to her the uncertainties recognized by the obstetrical community with respect to the risks of the use of prostaglandin on VBAC patients.

[25]            Mr. and Ms. Cojocaru showed up at the hospital on May 21, 2001 and Ms. Cojocaru was admitted for the induction.  She was assessed by Nurse MacQueen and by Dr. Edris, and the prostaglandin gel was inserted at 10:50 hours.  Ms. Cojocaru was kept in hospital and monitored on the admissions floor until approximately noon, and then moved up to the antepartum ward.  She stayed up there until approximately 16:30, and was then brought down to the labour and delivery unit.  It is the events in the labour and delivery unit which are most seriously in dispute and which lie at the heart of the case against Nurse Bellini and Nurse Voerwold, Dr. Steele, and the hospital.  The assessment by Dr. Edris is the basis for the claim against him.

THE CONSENT ISSUES

[26]            There are two consent issues in this case.  They relate to the care provided by Dr. Yue:

·         Did Dr. Yue provide the plaintiff with the required information such that Ms. Cojocaru gave an informed consent to having a prostaglandin induction? 

·         Did Dr. Yue provide the plaintiff with the required information such that Ms. Cojocaru gave an informed consent to having a VBAC delivery. 

[27]            I will review the law on informed consent and then the evidence with respect to those issues.

The Law – Informed Consent

[28]            Prior to the judgment of the Supreme Court of Canada in Hopp v. Lepp, [1980] 2 S.C.R. 192, 112 D.L.R. (3d) 67, the issue of the obligation on the part of a physician to disclose relevant medical information to patients was a matter of considerable debate among those involved in medical\legal cases.  This issue was whether the cases should fall under the umbrella of intentional torts (battery) or negligence.  Additionally, there was a question regarding what the scope of the duty was.  Finally, there was an issue of whether this was an area, like almost all other areas of medical malpractice law, where the courts should defer to the standards set by the medical community. 

[29]            These issues were settled in Hopp and in the cases that followed it:  Reibl v. Hughes [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119, 100 D.L.R. (4th) 609; Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609; and Arndt v. Smith [1997] 2 S.C.R. 539, 148 D.L.R. (4th) 48 [all cited to S.C.R.].  The Supreme Court of Canada determined, and repeatedly affirmed, that cases of non-disclosure of risks and medical information were to be subsumed into the law of negligence, not battery. 

[30]            With respect to the duty to disclose, a useful starting point for courts in determining which risks must be disclosed is found in Rawlings v. Lindsay (1982), 20 C.C.L.T. 301 (B.C.S.C.), where McLachlin J. (as she then was) stated at 306:

…a medical person must disclose those risks to which a reasonable patient would be likely to attach significance in deciding whether or not to undergo the proposed treatment.  In making this determination, the degree of probability of the risk and its seriousness are relevant factors. 

[31]            In McInerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, a case involving the issue of the ownership of a physician’s clinical records, and whether a patient has a right to access that information, La Forest J., speaking for the court, noted that the relationship that exists between a physician and a patient is a fiduciary relationship.  He then stated at 150:

The physician-patient relationship also gives rise to the physician's duty to make proper disclosure of information to the patient; see Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 884; and Kenny v. Lockwood, supra, at p. 155.  The appellant concedes that a patient has a right to be advised about the information concerning his or her health in the physician's medical record.  In my view, however, the fiducial qualities of the relationship extend the physician's duty beyond this to include the obligation to grant access to the information the doctor uses in administering treatment.  This approach has been taken by one stream of American cases.  In Emmett v. Eastern Dispensary and Casualty Hospital, 396 F.2d 931 (D.C. Cir. 1967), Robinson J. held, at p. 935, that the fiducial qualities of the physician-patient relationship impose a duty on the physician ‘to reveal to the patient that which in his best interests it is important that he should know’.  

[32]            In Ciarlariello v. Schacter, a case involving surgical misadventure, Cory J., speaking for the court, stated at 133: 

(a)    The Standard for Disclosure 

Reibl v. Hughes, supra, indicates that the disclosure which must be made to a patient will often be more than that which the medical profession might consider appropriate to divulge.  Although expert medical evidence on this issue is still relevant, it is no longer decisive in determining whether or not sufficient information was given to a patient to enable that patient to make an informed consent.  The test now focuses on what the patient would want to know.  Laskin C.J. put the position in these words at pp. 894-95: 

To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty.  Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment.  It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone.  The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards.  What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment. 

In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should be taken.  The crucial question in determining the issue is whether a reasonable person in the patient's position would want to know of the risk

[Emphasis added] 

[33]            Two years later, in Hollis v. Dow Corning Corp., a case which examined the duty of the manufacturer of a breast implant to warn physicians and patients of the risks associated with the use of the implants, La Forest J., speaking for the court (on this issue), stated at 655: 

I pause at this point to observe that there is an important analogy to be drawn in this context between the manufacturer's duty to warn and the doctrine of "informed consent" developed by this Court in recent years with respect to the doctor-patient relationship.  In Hopp v. Lepp, [1980] 2 S.C.R. 192, at pp. 195-96, 210, and Reibl v. Hughes, [1980] 2 S.C.R. 880, at pp. 884-85, this Court decided that physicians have a duty, without being questioned, to disclose to a patient the material risks of a proposed procedure, its gravity, and any special or unusual risks, including risks with a low probability of occurrence, attendant upon the performance of the procedure; see also Ciarlariello v. Schacter, [1993] 2 S.C.R. 119.  The principle underlying ‘informed consent’, as Laskin C.J. explained in Hopp, supra, at p. 196, is the ‘right of a patient to decide what, if anything, should be done with his body’; see also Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y.C.A. 1914), per Cardozo J.  The doctrine of ‘informed consent’ dictates that every individual has a right to know what risks are involved in undergoing or foregoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.  As Robinson J. observed in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), at p. 780:

True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.  The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision.  From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible. 

[Emphasis added] 

[34]            In Brito (Guardian ad litem of) v. Woolley, 2001 BCSC 1178, aff’d 2003 BCCA 397, 16 B.C.L.R. (4th) 220, a case involving a twin birth which went wrong, the governing legal principles relating to informed consent were summarized in this way by Sinclair Prowse J. at paras. 132-134: 

A patient cannot be taken to have consented to a particular treatment or medical procedure unless he or she has been fully informed as to the material risks of that treatment or procedure, and informed of alternative treatments or procedure, if any:  Reibl v. Hughes, 1980 CanLII 23 (S.C.C.), [1980] 2 S.C.R. 880; Arndt v. Smith, 1997 CanLII 360 (S.C.C.), [1997] 2 S.C.R. 539; Hopp v. Lepp, 1980 CanLII 14 (S.C.C.), [1980] 2 S.C.R. 192; Bauer (Litigation Guardian of) v. Seager, 2000 MBQB 113 (CanLII), [2000] 11 W.W.W. 621, 2000 MBQB 113 (Man. Q.B.); Mangalji (Next Friend of) v. Graham (1997), 47 Alta. L.R. (3d) 19 (Q.B.); Rhine v. Millan, 2000 ABQB 212 (CanLII), [2000] 7 W.W.R. 136, 2000 ABQB 212 (Alta. Q.B.).  Every physician owes a duty to their patient to independently disclose any special, material, or unusual risks associated with the treatment or procedure being recommended and, in certain circumstances, to disclose alternative treatments reasonably available to the patient. 

What constitutes a special, material, or unusual risk will depend on the particular facts of the case.  A mere possibility will be included as a material risk if the occurrence of that mere possibility is serious, for example, if it can result in paralysis or death: Reibl v. Hughes, supra; Puranen v. Thomson (1987), 46 Man. R. (2d) 55 (Q.B.).  Material risks include those risks which the doctor knows, or ought to know, that a reasonable person in the patient’s position would consider in deciding whether to undergo a procedure or treatment: Ciarlariello v. Schacter, [1993] 2 S.C.R. 119. 

The professional standards of physicians as to whether a risk is material are not in themselves determinative of this issue.  Specifically, expert medical evidence as to whether a particular risk should normally be explained to a patient is relevant but not conclusive: Puranen v. Thomson, supra.  Rather, this evidence is simply a factor to be considered together with the evidence of the patient and his or her circumstances. 

[35]            In Anderson-Redick v. Graham, 2000 ABQB 36, 258 A.R. 42, a case involving a traumatic forceps delivery, consent to the use of forceps was in issue.  In determining that the defendant physician had failed in his obligation to properly advise the plaintiff, Paperny J. stated: 

[110]    Individuals have the right to make their own health care decisions.  In order to exercise this right in a meaningful way, a patient needs sufficient information to make an informed choice about medical treatment.  Thus, except in limited circumstances, doctors are under a legal obligation to provide a patient with material information relating to a proposed treatment or procedure: Hopp v. Lepp, supra.  This obligation has been called the ‘doctrine of informed consent’ or, in some cases, the ‘duty of disclosure’. 

[111]    One of the underlying features of this duty is its focus on effective communication.  In the words of Picard and Robertson in Legal Liability of Doctors and Hospitals in Canada (Toronto: Carswell, 1996) at 111:

Another important feature of the doctrine of informed consent is its focus on effective communication between doctor and patient. [...]  The doctor’s obligation to disclose material information to the patient about the proposed treatment makes the process of communication all the more important. 

[112]    Another aspect of this duty is the protection of a patient’s bodily integrity and autonomy.  On this aspect, Cory J. wrote in Ciarelariello v. Schacter, [1993] 2 S.C.R. 119, 100 D.L.R. (4th) 609 at 618: 

It should not be forgotten that every patient has a right to bodily integrity.  This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted.  Everyone has the right to decide what is to be done to one’s own body.  This includes the right to be free from medical treatment to which the individual does not consent.  This concept of individual autonomy is fundamental to the common law and is the basis for the requirement that disclosure be made to a patient. 

[113]    The standard of disclosure required of doctors when treating patients is determined by reference to a patient-centred test:  what would the reasonable person in the patient’s position want to know before making a decision about treatment

[Emphasis added] 

[36]            What if the risk of injury to the patient is small?  Where does the duty to disclose fall?  The answer to that question can be found in Bryan v. Hicks, [1995] 10 W.W.R. 145, 10 B.C.L.R. (3d) 239 (C.A.).  In that case, the defendant orthopaedic surgeon removed a ganglion from the wrist of the plaintiff.  The ganglion had developed over time and was painful and annoying to the plaintiff.  The surgery was done appropriately, but the plaintiff developed a known complication—reflex sympathetic dystrophy.  The plaintiff’s hand became permanently disfigured and essentially useless.  She sued, and the court found the defendant liable for failing to properly inform her of the risks of this complication.  The defendant appealed on the basis that the risk was so low that there was no duty to disclose it.  In rejecting that submission, Ryan J.A., speaking for the court, stated: 

ii.          Did Dr. Hicks Have a Duty to Warn? 

17        Counsel for the appellant submitted that the real basis of his appeal was that Dr. Hicks need not have said anything at all about the risk of developing reflex sympathetic dystrophy.  Counsel drew the court's attention to the evidence at trial which established that the risk of this complication was minimal, and the practice of other experts in the area was not to warn of it.  He submitted that in the circumstances, this case fell outside the scope of the duty to warn. 

18        The evidence established that the incidence of reflex sympathetic dystrophy occurring after ganglion surgery was at best three percent of all cases.  Of the three percent who are afflicted with this problem, ninety-five percent are left with no symptoms after about a month of therapy.  The rest are left with the severe form of the condition which I have described earlier.  By my calculation this means that about three in 2,000 might develop the severe, permanent form of the condition.  Two respected experts in the area expressed the opinion that a patient need not be warned of the risk of reflex sympathetic dystrophy.  Dr. Hicks' discussion of ‘sympathetic pain’ went beyond the standard practice in his profession. 

19        The evidence also established that wrist ganglions can be very painful, but that they do not interfere with wrist function in any other way.  Prescribed treatment is five-fold:  injection, aspiration, manipulation, surgery, and doing nothing.  All may lead to the disappearance of the ganglion.  With everything but surgery there is a good chance that the ganglion will return. 

20        There was no issue with respect to the established case law in this area.  A plaintiff must establish:

1.         That there was a material risk attending the proposed surgery which the physician or surgeon did not disclose. 

2.         That a reasonable person in the position of the plaintiff to whom that risk was disclosed would have declined the surgery.  

21        The scope of the duty to disclose and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.  In Ciarlariello v. Schacter, a case decided one month after the trial in the case at bar the Supreme Court of Canada discussed the test for determining what constitutes a ‘material risk’.  Cory J. said this for the Court at page 133:

Reibl v. Hughes [[1980] 2 S.C.R. 880], indicates that the disclosure which must be made to a patient will often be more than that which the medical profession might consider appropriate to divulge.  Although expert medical evidence on this issue is still relevant, it is no longer decisive in determining whether or not sufficient information was given to a patient to enable that patient to make an informed consent.  The test now focuses on what the patient would want to know.  Laskin C.J. put the position in these words at pp. 894-95:

To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty.  Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment.  It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone.  The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards.  What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment. 

In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should be taken.  The crucial question in determining the issue is whether a reasonable person in the patient's position would want to know the risk. 

[Emphasis added]

22        Thus, a risk may be remote, yet considered to be material (eg. Rocha v. Harris (1987), 36 D.L.R. (4th) 410 (B.C.C.A.) at p. 413). 

23        In the case at bar the trial judge found the words of McLachlin J. in Rawlings v. Lindsay (1982), 20 C.C.L.T. 301 (B.C.S.C.), to be useful where she said at 306: 

...a medical person must disclose those risks to which a reasonable patient would be likely to attach significance in deciding whether or not to undergo the proposed treatment.  In making this determination, the degree of probability of the risk and its seriousness are relevant factors.  Thus an "unusual" or improbable risk should be disclosed if its effects are serious.  Conversely, a minor result should be disclosed if it is inherent in or a probable result of the process. 

Other factors which may be relevant in determining a reasonable standard of disclosure include the gravity of the condition to be treated, the importance of the benefits expected to flow from the treatment and the intellectual and emotional capacity of the patient to accept the information without such distortion as to prevent any rational decision at all. 

23.1     In the case at bar, although the plaintiff's wrist was painful, her condition was not dangerous to her health.  She had tried one other method of treatment without success, but there were other methods which might have assisted her.  The benefit of surgery was that it was 100% effective in removing the ganglion and carried a small risk that the ganglion would return.  The drawback was the slight chance that the patient would lose the use of her hand completely.  The trial judge determined in effect that although medical opinion was to the contrary with respect to the level of disclosure required in such a situation, a reasonable person would want to know this risk.  I cannot say that in the circumstances of this case the trial judge was wrong in finding that the risk was "material" and therefore ought to have been disclosed. 

[37]            The principles regarding consent can be summarized as follows: 

(i)         A physician owes a duty to their patient to disclose any special, material, or unusual risks associated with the treatment or a procedure and, in certain circumstances, to disclose alternative treatments reasonably available to the patient.  The duty to disclose is a patient oriented test, the determining factor being what would a reasonable patient want to know?; 

(ii)        Although a particular risk may be only a mere possibility, if its occurrence carries serious consequences (i.e. paralysis or death), it is a “material risk” and requires disclosure;  

(iii)       Expert medical evidence as to whether a particular risk is or is not normally explained to a patient is relevant but the determination must be made on the basis of what the reasonable patient in the circumstances of the plaintiff would want to know, not on the basis of what a reasonable physician thinks ought to be disclosed. 

[38]            The law mandates full disclosure to patients of information which “…a reasonable patient would want to know before making a decision regarding treatment”.  This applies to all material risks, including risks which may be small but which carry potentially significant consequences for the patient. 

Dr. Yue – Consent to Prostaglandin Induction

[39]            Induction of labour is the initiation of labour before the spontaneous onset of labour begins, to allow for delivery of the baby.  There are different agents which may be used depending on the status of the cervix.  The induction agent administered in this case was that of Prostin vaginal gel. 

[40]            The evidence on this issue is very clear.  As part of the plaintiff’s case, Dr. Yue’s discovery evidence as follows was read in: 

134      Q         All right.  So I presume that you would not have explained to Ms. Cojocaru any risks attendant upon induction? 

A          No. 

[41]            This evidence was confirmed during her evidence at trial, when Dr. Yue testified that she did not speak with Ms. Cojocaru about induction.  She testified that if a VBAC was planned and the patient passed the due date, she does not normally discuss the risks of induction with her patients.

[42]            Dr. Mitchell, an expert called on behalf of the plaintiff, states in his report that: 

One of the complications of labour induction with pharmacological agents is the risk of over-stimulating the uterus.  It is obvious that, in the setting of a trial VBAC, this unintended over-stimulation could pose a greater risk of uterine rupture.  From the SOGC guidelines in 1997, based on a relatively large body of information in the literature, it was determined acceptable to induce labour with the most commonly used inducing drug, Ocytocin.  However, there was much less information regarding the use of prostaglandin E or ‘Prostin’ (an alternative labour-inducing drug) with a trial VBAC.  With this drug, which is contained in a gel suspension that is inserted into the vagina, there is greater difficulty in removing the drug if uterine over-stimulation occurs.  The SOGC guidelines specifically advised that patients be counseled regarding the limitation of information regarding the safety of prostaglandin E induction in women undergoing a trial VBAC. 

[43]            This warning was never given to Ms. Cojocaru.  No counselling on this issue, as recommended by the Society of Obstetricians and Gynaecologists of Canada (“SOGC”) Guidelines, was provided to Ms. Cojocaru. 

[44]            The evidence indicates that Ms. Cojocaru was very confused as to why she was going into hospital.  One must remember that she was new to Canada, with limited language skills.  She regularly used an interpreter at her early appointments with Dr. Yue.  Dr. Yue clearly intended that a routine induction be performed.  Ms. Cojocaru believed that she needed to begin the induction procedure in order to access the caesarean section she wanted.  This is consistent with her evidence, and the evidence of her husband, as to how she accessed her initial caesarean section during the birth of her first son.  Then, she arrived at the hospital, her waters broke while they were on the steps of the hospital, and she had her caesarean section after Dr. Clepce determined that her baby had an improper presentation. 

[45]            Dr. Yue conceded in cross-examination that it was her responsibility to convey appropriate information to her patient about all of the risks and benefits of the medical options being offered.  I conclude that she failed in this duty. 

[46]            It was suggested in the evidence of Nurse MacQueen that Ms. Cojocaru was fully informed as to her reasons for attendance at the hospital on May 21, 2001, and the induction and the trial of labour planned.  Nurse MacQueen also suggests in her evidence some discussion during Ms. Cojocaru’s admission about the orientation of the uterine scar.  This was denied by Ms. Cojocaru.  Indeed, her evidence was very different.  She testified that she told Nurse MacQueen that she wanted a repeat caesarean section. 

[47]            I do not accept the evidence of Nurse MacQueen with respect to the discussion between Ms. Cojocaru and Nurse MacQueen.  It is not reliable for a number of reasons.  First off, this was, at the time, a routine discussion with a patient who, according to Nurse MacQueen, was in for a routine procedure.  There would have been no reason for her to remember the details of this conversation, notwithstanding her evidence that the events of the birth made it memorable.  She was not involved, by her own admission, in the trauma of Ms. Cojocaru’s delivery.  She simply heard about it the next day.  She did not even remember going up and leaving a gift for the baby after the delivery. 

[48]            Secondly, Ms. Cojocaru gave evidence that she spoke with a number of hospital staff members several days after the delivery, after Mr. Cojocaru had phoned Dr. Clepce in Romania to determine the orientation of the uterine scar.  It is likely this is the conversation that Nurse MacQueen is remembering, not something that happened the day of the delivery. 

[49]            Third, and of most important note, Nurse MacQueen admitted in cross-examination that evidence of the orientation of the uterine scar would have been important clinical information in the context of this case, yet no note was ever made by her on any documentation. 

[50]            Finally, Dr. Clepce himself testified that he had not been in touch with Ms. Cojocaru as alleged by Nurse MacQueen.  He confirmed that the first contact he had with either her or her husband was following the delivery, when Mr. Cojocaru contacted him with a request for the operative report. 

[51]            I conclude Nurse MacQueen is simply mistaken in believing that she spoke with Ms. Cojocaru before her induction as she described. 

[52]            Even if I accepted the defence assertion that Ms. Cojocaru understood she was being admitted for an induction and VBAC, not for a caesarean section, which I do not, the evidence clearly establishes Dr. Yue breached her obligation to properly inform Ms. Cojocaru of the risks associated with a prostaglandin induction.  

[53]            As indicated above, the evidence establishes without question that Dr. Yue did not advise Ms. Cojocaru of any increased risk associated with a prostaglandin induction.  The defence case is that there was no need to do so because no increased risk was established in the evidence.  This is a defence without foundation.  The viva voce evidence, and the documentary evidence, clearly establishes that Ms. Cojocaru should have been advised of the potential increased risk associated with the use of prostaglandins. 

[54]            There are a number of sources in evidence that support this conclusion.  First off, the Compendium of Pharmaceuticals and Specialities (“CPS”) 2000 and 2001 states that the use of Prostin gel is contraindicated where there is a history of a caesarean section.  Here, there was a previous caesarean section. 

[55]            The British Columbia Reproductive Care Program (“BCRCP”), Obstetric Guideline 1, acknowledged by Dr. Yue to be a Guideline which was in force in BC Women’s Hospital at the time, states that the risks and benefits of induction should be reviewed with the pregnant woman and her partner.  It defines the risks, and two of them are relevant to the case at hand - hyperstimulation of the uterus and uterine rupture.  The Guideline states that an “absolute contraindication” to induction is that of an unknown scar.  Further, it states:  “there should be discussion and disclosure of risk factors (including anticipated obstetrical risk, advantages and limitations of local maternity care services, and transport risks) with the patient prior to the induction, an informed consent should be obtained”.  

[56]            The BCRCP reiterates the SOGC Clinical Practice Guideline Policy, December 1997, in that:

The safety of prostaglandin gel use in women with previous low segment sections has not been established and further research is needed.  Prostaglandin preparations may be associated with very strong uterine contractions, and there are little data available on their use in women with uterine scars.  At this time if prostaglandin gel is to be used in the presence of a low segment caesarean section scar, the woman must understand the limitation of knowledge in this area, and the immediate availability of physicians and resources to respond to an emergency must be provided.  (pp. 3-4).  

It concludes that “full participation of the patient in these decisions is vital”. 

[57]            The Alarm Course Syllabus, 8th ed., SOGC states that “if an induction with Oxytocin or prostaglandin is done in the presence of a low segment caesarean section scar, the woman and her physician must understand the limitation of knowledge in this area”. 

[58]            Dr. Yue’s excuse for failing to comply with her obligation to inform or warn her patient, as virtually all the applicable clinical guidelines mandated, fell into two categories. 

[59]            First, with respect to her failure to warn or inform Ms. Cojocaru of the warning by the drug manufacturer that Prostin is contraindicated in a VBAC situation, Dr. Yue testified that she does not make clinical decisions regarding patient management based on the CPS.  In this regard, she was supported by some of the experts, Dr. Pendleton and Dr. Dansereau, and by her colleague Dr. Steele.  The evidence that clinicians may not make clinical decisions based on what the CPS states is, however, not the point.  The question is not whether it was medically acceptable to use Prostin for induction purposes.  The question is whether Dr. Yue had an obligation to disclose to her patient that the company that produces Prostin indicates that it is contraindicated in a VBAC situation.  The law obligates Dr. Yue to disclose information which a reasonable patient would want to know.  I conclude that a reasonable VBAC patient would want to know that Prostin, which is only used for induction purposes, is specifically contraindicated in VBAC patients.  This is not a drug which is being used for an “off label” purpose (which was Dr. Dansereau’s justification for not warning the patient).  This was a drug which has only one use.  In this circumstance, the obligation to disclose the warning that it is contraindicated cannot be ignored by the attending physician on the basis that it is a clinical decision for the physician to make. 

[60]            With respect to her failure to warn of the increased risks associated with the use of Prostin, Dr. Yue testified that, in her view, the existence of some published studies which indicated that there was no increased risk relieved her of her duty to warn or inform.  In this regard, she was supported by the same defence experts and by Dr. Steele. 

[61]            With respect, the testimony of these physicians displays the kind of medical arrogance which was rejected by the Supreme Court of Canada in Reibl at 894-895: 

To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty.  Expert medical evidence is, of course, rele­vant to findings as to the risks that reside in or are a result of recommended surgery or other treatment.  It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone.  The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards.  What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment. 

The other cases referred to above have repeatedly stated that the test is not what the medical profession wants to disclose, nor thinks should be disclosed, but rather what the patient would want to know. 

[62]            In this case, Ms. Cojocaru made clear to Dr. Yue her concerns regarding the health of her baby.  Dr. Yue failed to advise Ms. Cojocaru that the medication she was intending to use had been found to be contraindicated by the manufacturer in VBAC patients.  She failed to mention that the SOGC was so concerned about the potential increased risk of uterine rupture that they issued a specific directive to the medical community mandating advice to the patient regarding the limitations of knowledge in this area.  This directive was picked up and repeated in the BC Reproductive Care Program Guidelines, which were in use at BC Women’s Hospital. 

[63]            I conclude that any reasonable woman in the circumstances of Ms. Cojocaru would have rejected induction had this information been shared.  Ms. Cojocaru herself confirmed that if Dr. Yue had advised her of the risks of uterine rupture with Prostaglandin, as a statistically small risk to the baby’s life and health, she would never have exposed her baby to any risk.  She was never interested in having a natural delivery.  She had been advised against such a course of action and had come to Canada fully expecting, and fully desiring, a repeat caesarean section.  As a result of the information which was provided to her by Dr. Yue, Ms. Cojocaru believed that she had to undergo the induction in order to access a caesarean section. 

[64]            It is important to note that Dr. Yue agreed in cross-examination that pregnant patients must be allowed to participate in the decision regarding the delivery and that patients are entitled to be given information regarding all of the potential risks associated with the various modes of delivery.  She also confirmed that it is her obligation to provide information in a manner that is understandable to the patient.  She agreed that she also relies on the SOGC Guidelines and the Guidelines of the BC Reproductive Care Program and that she recognizes those bodies as authorities.

[65]            Whatever might be said of the appropriateness of using Prostin for inductions, it is clear that Dr. Yue had a legal obligation to advise her patient of not only the fact that the manufacturer had specifically indicated that that medication was contraindicated in her situation, but also to advise her, in accordance with the SOGC and the BCRCP Guidelines, that there was conflicting and limited knowledge regarding the safety of the use of Prostin in VBAC patients.  She failed in both aspects of this duty. 

Dr. Yue – Consent to VBAC

[66]            I turn now to the duty to disclose to Ms. Cojocaru the risks associated with VBAC.  

[67]            The evidence in this case shows that, until recent years, women who had a child delivered by caesarean section would have all subsequent children delivered the same way (“once a caesarean, always a caesarean”).  The medical community has more recently determined that many women who have had a previous caesarean section can safely deliver a subsequent child by vaginal delivery.  Thus, it has become common for such women to be offered a “trial of labour”.  

[68]            VBAC carries with it special risks.  The most serious risk associated with the trial of labour in a VBAC patient is the risk of uterine rupture.  The uterus is the abdominal organ containing the baby, the placenta and the umbilical cord connecting the baby to the placenta.  In a woman who has had a previous caesarean section, there is a scar on the uterus, which can come apart to varying degrees.  This is known as dehiscence.  A dehiscence may progress to a full rupture of the uterus at the site of the scar, after which the baby may be expelled or “extruded” from the uterus into the abdominal cavity.  This can cut off the supply of blood and, with the blood, oxygen and nutrients to the baby.  The period during which the scar is coming apart is sometimes referred to as an impending rupture.  The scar that is of concern is not the visible surgical scar on the abdomen, but the internal scar on the uterus. 

[69]            A uterine rupture is a life-threatening complication to both the mother and the baby.  The time within which the attending physician may intervene to save the baby and mother is very short.  Although the risk is statistically small, the seriousness of the consequences makes it a significant risk, and thus a “material risk”. 

[70]            The expert witnesses (both plaintiff and defendant, both medical and nursing), and indeed Dr. Yue herself, agreed that a fully informed consent is essential in relation to offering VBAC as an option to a patient who has had a previous caesarean section.  The options of VBAC and caesarean section should be explained clearly and, more importantly, so should the risks involved with both procedures.  The consent should be obtained on the basis that the patient can make an informed and intelligent decision based on the advice given by the physician.  The physician must ensure that the risks are outlined in such a way that the patient is given a reasonable understanding of the options explained and the associated risks. 

[71]            As Dr. Mitchell confirmed in his report dated July 16, 2007:  

When a patient has had a previous caesarean section, a decision must be made during a subsequent pregnancy whether to attempt a trial of vaginal delivery after caesarean (VBAC) or to schedule an elective repeat caesarean section.  In 2001, the standard of care was that it was the responsibility of the Obstetrician (Dr. Yue) to fully explain to the patient the risks and benefits of the alternative modes of management.  Then, the patient and the Obstetrician together would decide upon the most appropriate course of action.  In order to discuss the risks of a trial VBAC, it is essential to know the type of uterine incision that was performed in the previous caesarean section.  With respect to this specific case, there are three sequential considerations that should have been discussed: 

a.)        Undertaking a trial VBAC includes a risk of uterine disruption.  Most commonly this is in the form of uterine dehiscence (separation of the uterine muscle along the edges of the old scar) but a full uterine rupture (complete separation of the old scar including all layers of the uterus) may also occur.  This risk is low (usually quoted as less than one in two hundred attempted VBACs). 

b.)        If there was a vertical incision in the uterus (either a "classical" caesarean section or a low transverse incision that was extended vertically), the risk of uterine rupture is significantly increased to the range of 10%.  If these types of uterine scars rupture, there is likely to be severe consequences for the mother and baby because of severe hemorrhage and disruption of the placenta from the uterine wall.  There is general agreement that the risks of rupture of a previous vertical uterine incision during a subsequent labour, with the attendant complications for both mother and baby, far outweigh the putative benefits of VBAC.  Thus, for a patient with a previous caesarean section with a vertical uterine incision, a trial VBAC would be contraindicated. 

c.)        One of the complications of labour induction with pharmacological agents is the risk of over-stimulating the uterus.  It is obvious that, in the setting of a trial VBAC, this unintended over-stimulation could pose a greater risk of uterine rupture.  From the SOGC guidelines in 1997, based on a relatively large body of information in the literature, it was determined acceptable to induce labour with the most commonly used inducing drug, Ocytocin.  However, there was much less information regarding the use of prostaglandin E or “Prostin” (an alternative labour-inducing drug) with a trial VBAC.  With this drug, which is contained in a gel suspension that is inserted into the vagina, there is greater difficulty in removing the drug if uterine over-stimulation occurs.  The SOGC guidelines specifically advised that patients be counseled regarding the limitation of information regarding the safety of prostaglandin E induction in women undergoing a trial VBAC. 

[72]            The defendant’s expert, Dr. Pendleton, agreed that the standard is now that patients are to be given enough information to be able to make an informed and intelligent decision and that means outlining the risks.  He agreed that the job of the physician is to ensure the patient understands.

[73]            Dr. Dansereau, an expert called for the defence, agreed that the patient should have full participation in decision-making and that this is very important.  He stated that the patient should be told as much as possible about the pros and cons of any procedure.  He agreed in general that the patient should be given enough information so that she can make an intelligent decision.  He stated that you must use language that is understandable by the patient as much as possible and he agreed that in terms of using lay language the physician has an obligation to explain risks and potential consequences.  He agreed that in terms of explaining real world consequences, it is necessary to explain that if the risk happens, this is the kind of intervention we can provide and the likely success of the outcome. 

[74]            He also confirmed that a contraindication for a VBAC is a previous classical or unknown scar.  At page 8 of Dr. Dansereau’s report, he said that it was reasonable to assume that Ms. Cojocaru had previously had a lower transverse caesarean section.  In cross-examination, however, he confirmed that if Dr. Yue was wrong in her assumption, there would be an increased risk which would have been very serious indeed. 

[75]            Dr. Dansereau was involved in the British Columbian Reproductive Care Program.  This program looked at obstetrical practices and produced guidelines or recommendations which would have been in force in 2001.  He agreed with the following excerpt from the recommendations: “women …must be made aware of the hospital resources and the availability of an obstetrical surgeon, anaesthetic services, and operating room personnel who may be required in an emergency”.  He also agreed with a recommendation from the same guidelines, which provides: 

However, the primary care provider must determine the appropriateness of labor by reviewing the woman's previous caesarean section operative report.  Documentation of the location and type of uterine incision is mandatory. 

[76]            Dr. Dansereau confirmed that as much documentation as possible would be needed to verify the orientation of the scar.  He also agreed with the statement in the conclusion of the above exhibit that full participation of the patient in these decisions is vital.  

[77]            Dr. Dansereau also confirmed that most practitioners are aware of the SOGC Guidelines, the BCRCP Guidelines, and when new guidelines come out. 

[78]            The guidelines and recommendations in evidence confirm that uterine rupture is a known risk.  In addition, they highlight the importance of informed consent on that basis.

[79]            The SOGC Clinical Practice Guidelines state that “full participation of the patient in the decision is of supreme importance”.  The Guidelines conclude that “full participation of the patient in these decisions is vital”.  Dr. Dansereau agreed with these statements of principle.  

[80]            The BCRCP Obstetric Guideline, May 8, 2000, states that “respect for the woman’s autonomy, her participation and the participation of her partner in decision making is of paramount importance”.  It goes on to say that: “women undergoing labour after a previous caesarean section must be made aware of the hospital resources and the availability of an obstetrical surgeon, anaesthetic services and operating room personnel who may be required in an emergency” and “however the primary care provider must determine the appropriateness of labour by reviewing the woman’s previous caesarean section operative report”.  

[81]            Full participation of the patient in these decisions is vital.  The significance of these statements regarding resources is very important in this case for two reasons outlined in the section below dealing with Dr. Yue’s evidence.

[82]            Dr. Yue did not seriously dispute the evidence of the experts on this topic.  Of note, she agreed in cross-examination that: 

1.                  Patients are entitled to be given full information regarding all of the potential risks associated with the various modes of delivery. 

2.                  Her obligation is to provide information in a manner that is understandable to the patient.  

3.                  She confirmed that there is a risk of uterine rupture with a VBAC. 

4.                  The risk of uterine rupture is much higher if the first caesarean section is not performed with a lower transverse incision.  At one point she suggested that VBAC with a prior vertical incision is still possible (ie - it can still be done safely after proper counseling).  She agreed on further questioning that it would never be recommended. 

5.                  She was aware that if a uterine rupture occurs, that would put the life of mother and baby at risk and that the injury could happen within minutes.  

6.                  She stated that although she cannot remember the details of the appointments or what was discussed, relying upon her invariable routine, she testified what she would have advised regarding the option of elective caesarean section.  The advantage being that it can be scheduled at a specific time and poses less risks for the fetus, but the harder side is for the mother.  It is difficult for the mother to mobilize and difficult to have another baby, as that would be a total of three caesarean sections. 

7.                  In relation to VBAC, Dr. Yue stated (again relying upon her invariable routine) that she would have told Ms. Cojocaru there is less bleeding, the patient can mobilize more quickly and the next pregnancy will be easier.  She testified that the major concern is the risk of uterine rupture (which she pegged at 1 in 200).  She testified that she would have explained that the majority of times this can be detected in time and they can do a caesarean section.  However, sometimes the baby can be pushed outside of the abdomen, with resultant lack of oxygen, injury, brain damage and death.  She indicated that the risk of this happening is very small.  

[83]            In order to proceed, it is necessary to determine specifically what information was conveyed to Ms. Cojocaru, in an understandable manner, about the risks associated with VBAC. 

[84]            Ms. Cojocaru’s evidence, and the independent evidence of Ms. Geller, is that Ms. Cojocaru was seeking Dr. Yue’s assistance in arranging a repeat caesarean section.  That is what she had been advised to do by her Romanian obstetrician and that is what she believed, based on her experiences and her understanding of proper practice, would be done in Romania.  She was very surprised when Dr. Yue spoke about a vaginal delivery.  To Ms. Cojocaru’s mind, Dr. Yue described the vaginal delivery in such light that everything would be natural and everything would go well and that there would be no medication involved.  Ms. Cojocaru confirmed that there was a discussion about a caesarean section and that Dr. Yue described a lot of risks associated with same.  Dr. Yue did not describe the risks associated with a natural delivery.  Most importantly, there was no discussion in relation to the risk of uterine rupture.  Ms. Cojocaru confirmed in evidence that the first time she heard about the risk of possible uterine rupture was after Eric was born.  She confirmed that had she been advised by Dr. Yue that there was a 1 in 200 chance of uterine rupture, and the implications of that risk, there is no way she would have attempted to deliver vaginally.  In her words, she had already experienced the worst with a baby with problems, she was as a result anxious and concerned about the delay in the birth of her second child.  She was not prepared to accept any level of risk that could be avoided. 

[85]            Ms. Geller confirmed that there was no discussion by Dr. Yue in relation to the risks associated with natural delivery.  Ms. Geller confirmed that Dr. Yue did not advise about the risk of uterine rupture with a trial of labour.  She did not recall the number 1 in 200 in relation to the uterine rupture. 

[86]            Mr. Cojocaru confirmed that he spoke with his wife soon after the appointments.  He was told by Ms. Cojocaru that Dr. Yue said it was possible to have a vaginal delivery.  He recalled Ms. Cojocaru indicating that Dr. Yue had explained all the benefits in relation to a vaginal delivery but had not told Ms. Cojocaru about any possible risks. 

[87]            Similarly, Mr. Cojocaru confirmed that they did not know about the risks associated with Prostaglandin.  As far as he was aware, the gel would be inserted to start the delivery process and any time she felt pain, the team would be ready to provide a caesarean section. 

[88]            Mr. Sarban gave evidence that he had discussed the appointments with his sister.  Again, he recounted that while Ms. Cojocaru was advised of the possible benefits of VBAC, no risks had been outlined.  He also testified that Ms. Cojocaru was not interested in VBAC – she maintained her desire for a repeat caesarean section. 

[89]            Alina Sarban, the sister-in-law of Ms. Cojocaru, had known her for many years.  She too is from Romania.  She confirmed the Romanian cultural view that as Ms. Cojocaru had a previous caesarean section there would be no other way to deliver Eric.  That was the concept in Romania.  She recalled conversations with Ms. Cojocaru after the appointments with Dr. Yue.  Ms. Cojocaru had told her that she wanted a caesarean section.  Dr. Yue had spoken about a natural delivery.  Ms. Cojocaru had been told that she would have a team available right away and that all she had to do was raise a finger and she would have the caesarean section.  She confirmed that there was no discussion about the risks of a natural delivery. 

[90]            In summary, five witnesses gave evidence in relation to the above issue and the fact that the risk of uterine rupture was not explained to Ms. Cojocaru.  Those who testified as to the meeting with Dr. Yue were Ms. Cojocaru and Ms. Geller.  Ms. Geller was a believable witness, not shaken in cross-examination.  Ms. Cojocaru’s evidence was completely believable.  She was a direct and impressive witness.  She clearly communicated that she was, and I accept her evidence, an overly cautious expectant mother who desired a caesarean section.  I accept she had limited language skills in English.  I accept that she used Ms. Geller as an interpreter. 

[91]            As for the evidence of Dr. Yue, it is important to note that Dr. Yue conceded that she has no recollection of her discussions with Ms. Cojocaru.  She did not remember who attended the appointments with Ms. Cojocaru.  She testified that she must rely upon her invariable routine, and upon her chart notes, in order to testify as to what occurred between them. 

[92]            In this regard, it is important to first look to the notes made by Dr. Yue at the time.  The notes indicate that Dr. Yue did advise Ms. Cojocaru that there was an option available to her — VBAC versus repeat caesarean section.  Ms. Cojocaru herself agrees that such a discussion took place.  There are virtually no other notes, however, indicating that there was any discussion of the risks associated with each option.  Dr. Yue points to her consultation letter to the family practitioner dated March 18, 2001 for verification of the fact that she did indeed discuss risks with Ms. Cojocaru.  It is important to look at the details of that letter, however, in order to determine whether it does indeed indicate that the risks were discussed with Ms. Cojocaru.  The letter indicates: 

This is a 32-year-old patient with a previous C-section.  The methods of delivery were discussed with her in detail.  She can either choose an elective repeat C-section or a trial of vaginal birth after C-section.  This (sic) success of VBAC is approximately in the order of 80%, as she was not in labor the first time.  The only concern is the risk of 1/200 of uterine rupture.  At the moment she is somewhat undecided, and will let me know later on… 

[93]            A number of comments need to be made about this letter.  First, the letter appears to have been dictated two days after her visit with Ms. Cojocaru.  Next, while this letter purports to suggest that Ms. Cojocaru is actually advised that there was a 1 in 200 risk of uterine rupture, there is no indication that the significance of that statistic was brought home to Ms. Cojocaru.  To an average layperson, the medical significance of a uterine rupture would likely be completely unknown. 

[94]            There is no indication in either Dr. Yue’s notes, or her consultation letter, that she made any effort to account for Ms. Cojocaru's obvious language problem.  Ms. Cojocaru herself testified that her command of the English language at that time was rudimentary at best.  This is perfectly understandable, she having immigrated to Canada only four months before.  Ms. Geller, who attended with Ms. Cojocaru at this initial visit with Dr. Yue, confirmed that Ms. Cojocaru's command of the English language was very poor.  All of the experts, and Dr. Yue herself, agreed that the obligation of the physician was to make sure that the patient actually understands what risks are being faced by the medical options being provided.  Dr. Yue clearly failed in her obligation with respect to communicating the risks, and the significance of those risks to the health of herself and her baby, to Ms. Cojocaru.

[95]            In considering the reliability of Dr. Yue’s evidence, I am mindful of the dictates of several judgments regarding assessing the credibility of witnesses in general, and witnesses relying upon “invariable routine” in particular.  With respect to the former, the comments of  Mr. Justice O’Halloran in the judgment of the British Columbia Court of Appeal in Faryna v. Chorny (1951), 4 W.W.R. 171 at 174, 2 D.L.R. 354 are instructive: 

If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.  On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness.  Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility .... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth.  I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. 

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.  The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.  In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.  Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth.  Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. 

[96]            In Burke-Pietramala v. Samad, 2004 BCSC 470, a case involving a tonsillectomy gone wrong such that the plaintiff lost her sense of taste, the court noted the inability of the defendant to recall the details of his dealings with his patient: 

[35]      Dr. Samad testified that he had no recollection of any of his conversations with the plaintiff or her husband and that he had no recollection, in particular, of the telephone conversation with the plaintiff’s husband.  He then went on to testify about what he would ordinarily do in such circumstances…  

[51]      Dr. Samad had no recollection of performing this specific procedure and relied, in his evidence, on his usual procedure and his operative report. 

[52]      Dr. Samad went on to acknowledge that he had no specific recollection outside of the minimal notes found in his patient chart of the patient’s attendance or his conversations with her on any of her attendances.  He testified he had no recollection of dealing with his employee over the failure to have a follow-up visit within a week; nor of the telephone call from her husband the day following the surgery. 

[53]      In cross-examination Dr. Samad agreed that he had no recollection of any conversation he ever had with the plaintiff, and went on to testify that he had no independent recollection of any examination he ever did of the plaintiff except the one examination when her husband was present. 

[104]    …As Dr. Samad made very clear his chart and records were a long way from being a verbatim record, indeed, some of his entries from a full appointment and an examination consisted of three or four phrases....

[105]    Whatever the plaintiff’s recollections they are more accurate and reliable, in my view, than those of Dr. Samad who took virtually no notes, recorded cryptic chart entries on some occasions and more on others, and instead relied on extensive and detailed renditions of his usual procedure.  

[97]            The cases highlight the dangers of relying upon “invariable routine” evidence.  Most practitioners practice properly, most of the time.  If evidence of “invariable routine” is given too much weight, no medical practitioner would ever be found to have been negligent.  When a medical specialist makes no notes, or very scanty notes, and his\her evidence conflicts with other independent evidence of what occurred, the court must be very cautious indeed before accepting the “invariable routine” evidence.  In addition, the court should apply the dictates outlined in Farnya with a view to assessing the likelihood of the “invariable routine” actually having been followed. 

[98]            While Dr. Yue relies upon her records and her “invariable routine”, it was clear on cross-examination that Dr. Yue’s records were incomplete and that her “invariable routine” was not followed.  She conceded the importance of keeping complete and accurate records (which would normally be part of her invariable routine) but in this case she: 

(a)               did not chart any crucial information regarding her attempt to obtain the Romanian records so as to ascertain the reason for the initial caesarean;  

(b)               failed to obtain the chart of Dr. Bojanowska-Moore, Ms. Cojocaru’s general practitioner, even though it was her “invariable routine” to do so; 

(c)               failed to chart any aspect of her alleged discussion with Ms. Cojocaru regarding her attempts to determine: 

(i)                  why the original caesarean section had been performed; 

(ii)                what was the orientation of the previous scar;

(d)               failed to chart any aspect of her alleged conversation regarding the risks that she says were explained to Ms. Cojocaru. 

[99]            Additionally, Dr. Yue “interpreted” her scant notes to indicate that because she was not 100% sure about Ms. Cojocaru’s due date, she relied on a 32-week ultrasound to ascertain the due date.  The defence expert, Dr. Pendleton, confirmed that the 32-week ultrasound is essentially useless in relation to dating.  In cross-examination, when faced with Dr. Pendleton’s testimony, she purported to verify her original testimony by suggesting that she did not order the ultrasound for dating purposes per se, but rather to verify Ms. Cojocaru’s reported dates as to her last period.  That is what a dating ultrasound is for, and it cannot be properly done at 32 weeks. 

[100]        When considering the reliability of Dr. Yue’s evidence, particularly where it conflicts with Ms. Cojocaru’s evidence and the evidence of the other witnesses called by the plaintiffs, it is important to keep in mind Ms. Cojocaru’s situation, and therefore the likelihood that she would have simply accepted Dr. Yue’s alleged warnings.  There are a number of factors which point strongly to the conclusion that she was never advised of the risks associated with uterine rupture to her health and, more importantly, to the health of her baby.  These factors include: 

1.                  she had been advised by her prior obstetrician that she should have her baby by way of repeat caesarean section; 

2.                  she, and her family, all believed that this baby would be delivered by way of repeat caesarean section; 

3.                  she conveyed to Dr. Yue her significant anxiety regarding the health of her baby.  Dr. Yue’s file confirms this; 

4.                  her first pregnancy resulted in her having a "malformed" baby which caused her a great deal of stress and anxiety; and  

5.                  according to the cultural dictates of her country, children with a disability are a source of significant shame, thus she was an overly cautious patient. 

[101]        I conclude that had Ms. Cojocaru been told of the above risks to her baby she would have immediately opted for a caesarean section, having regard to her background, previous experiences and concerns in relation to having a normal baby.  Her overwhelming desire to have a "normal" baby makes it extremely unlikely that she would have given even passing consideration to a trial of labour and the risk of uterine rupture, had the significance of uterine rupture been explained to her. 

[102]        The evidence indicates that Dr. Yue, rather than making an appropriate and thorough investigation into the circumstances surrounding the original caesarean section, simply made the assumption that the previous caesarean section was elective.  On the basis of her evidence, this assumption appears to have arisen from the fact that the only explanation given by Ms. Cojocaru for the previous caesarean section was that her son had a cleft palate.  As Ms. Cojocaru could not provide any other explanation for the caesarean section, Dr. Yue concluded that it must have been elective.  All of the medical experts agreed, however, that a cleft palate is not an indication for a caesarean section anywhere in the world.  Even Dr. Yue agreed with this.  Thus, at best, Dr. Yue was left in a position that her patient did not know or understand the reason for the first caesarean section and thus she (Dr. Yue) simply did not know why it was done.  That, with respect, is not an appropriate basis upon which to conclude that the caesarean section was "elective". 

[103]        Dr. Yue clearly concluded, based on the very limited information provided to her by Ms. Cojocaru, that she had had an elective primary caesarean section.  She testified that she concluded that Ms. Cojocaru did not go into labour as her caesarean section in Romania was one of "choice".  On this basis, she claims she advised Ms. Cojocaru she would have an 80% chance of success with a VBAC.  In this regard she did not discuss the options available nor the risks associated with same.  Dr. Yue appeared to have already made up her mind that Ms. Cojocaru was suitable for a VBAC based on this incorrect assumption.

[104]        The evidence of Dr. Clepce indicates that Ms. Cojocaru's caesarean section was for failure to progress.  He testified that “the birth—the birth didn't progress, and the situation that I was facing was called, in medical terms, fascia metrosacral [sic] presentation of the baby”. 

[105]        The situation described by Dr. Clepce was not an elective caesarean section.  This was a caesarean section performed because of a problem with Ms. Cojocaru's labour. 

[106]        During her examination for discovery, which was read in as part of the plaintiff's case, Dr. Yue conceded that if the original caesarean section is done for failure to progress, the chances of VBAC being successful were significantly less than 80%.  In addition, the chances of complications resulting in morbidity were significantly increased.  Again, had this information been conveyed to Ms. Cojocaru, it is very unlikely she would have paid even passing attention to the possibility of VBAC.

[107]        Having considered the evidence, I conclude that Dr. Yue did not warn Ms. Cojocaru of the risks associated with uterine rupture.  This would be so even if she did mention the statistical risk of 1 in 200, which I do not find she did.  There are other risks Ms. Cojocaru should have been aware of.  These include that if there was a uterine rupture, it would place both her life and the life of her baby at severe risk.  Additionally, if there was a uterine rupture, there was a very real risk that the hospital would not be able to rescue her baby before permanent brain damage occurred. 

[108]        I conclude that the evidence clearly establishes that Dr. Yue failed in her obligations to disclose to Ms. Cojocaru both the risks associated with VBAC and the information and risks associated with the use of Prostin.  

Causation – The Law

[109]        Once the plaintiff has established a failure on the part of the defendant physician to adequately disclose risks associated with treatment, she must then go further and establish causation.  In consent cases causation is established by proving that a reasonable patient in the plaintiff's particular position would have declined the treatment had the risks been adequately disclosed.  In other words, the test is not what this patient would have done.  Rather, the test is what a reasonable patient in her circumstances would have done had the risks been adequately disclosed. 

[110]        In Arndt, Cory J., speaking for the majority, referred to the Supreme Court of Canada’s judgment in Reibl, where the appropriate causation test was considered by Laskin C.J.C.  Laskin C.J.C. found problems with both a purely subjective and a purely objective test.  Writing in Reibl, at 898-900, he went on to state: 

I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery.  The failure of proper disclosure pro and con becomes therefore very material.  And so too are any special considerations affecting the particular patient.  For example, the patient may have asked specific questions which were either brushed aside or were not fully answered or were answered wrongly.  In the present case, the anticipation of a full pension would be a special consideration, and, while it would have to be viewed objectively, it emerges from the patient’s particular circumstances.  So too, other aspects of the objective standard would have to be geared to what the average prudent person, the reasonable person in the patient’s particular position, would agree to or not agree to, if all material and special risks of going ahead with the surgery or foregoing it were made known to him.  Far from making the patient’s own testimony irrelevant, it is essential to his case that he put his own position forward. 

The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon.  Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it.  The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation.  Admittedly, if the risk of foregoing the surgery would be considerably graver to a patient than the risks attendant upon it, the objective standard would favour exoneration of the surgeon who has not made the required disclosure.  Since liability rests only in negligence, in a failure to disclose material risks, the issue of causation would be in the patient’s hands on a subjective test, and would, if his evidence was accepted, result inevitably in liability unless, of course, there was a finding that there was no breach of the duty of disclosure.  In my view, therefore, the objective standard is the preferable one on the issue of causation. 

[111]        After quoting the above passage from Reibl, Cory J. went on to consider what individual circumstances of the plaintiff could be considered.  He stated at para. 9:  

            … Which aspects of the plaintiff’s personal circumstances should be attributed to the reasonable person?  There is no doubt that objectively ascertainable circumstances, such as a plaintiff’s age, income, marital status, and other factors, should be taken into consideration.  However, Laskin C.J. didn’t stop there.  He went on and stated that ‘special considerations’ affecting the particular patient should be considered, as should any ‘specific questions’ asked of the physician by the patient.  In my view this means that the ‘reasonable person’ who sets the standard for the objective test must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations.  Further, the patient’s expectations and concerns will usually be revealed by the questions posed.  Certainly, they will indicate the specific concerns of the particular patient at the time consent was given to a proposed course of treatment.  The questions, by revealing the patient’s concerns, will provide an indication of the patient’s state of mind, which can be relevant in considering and applying the modified objective test. 

10.       An example may serve to illustrate this.  Imagine a patient considering plastic surgery on his nose.  During a pre‑operative consultation, the patient asks if the surgery will affect his sense of smell.  The physician fails to fairly and adequately explain the attendant risks to this sensory function and does not mention that a certain percentage of patients suffer a permanent loss of a small fraction of their ability to smell.  After the surgery, the patient can no longer smell with the same acuity food that is cooking.  Under Laskin C.J.’s test in Reibl, the patient’s question about the risks to his sense of smell are clearly relevant.  The question posed suggests that the patient had a special concern about losing the sense of smell.  This is not an unreasonable concern.  The loss of a keen sensory perception of smell which is so closely related to the sense of taste is crucial to both those who artistically prepare and those who have a particular appreciation for finely prepared food.  This special fear of the loss of a keen sense of smell could be considered by the trier of fact in determining whether the reasonable person with the particular expressed concern of the plaintiff would have consented to the proposed course of treatment if all the risks had been disclosed. 

11.       As another example, let us consider a patient who asks his doctor about a proposed procedure, and particularly poses questions as to whether there might be any effect on his hearing, without advising the doctor of his particular passion for the singing of operatic sopranos.  If the doctor fails to inform the patient of the possibility that the procedure could limit his ability to hear in the upper ranges, the Reibl test would allow the trier of fact to consider the questions posed by the patient in determining whether he would have consented to the proposed treatment if he had been properly informed of all the risks.  Again, the questions asked by this patient may act as an indication of his own reasonable fears and concerns, which are appropriate modifiers of the hypothetical reasonable person.  

[112]        This “modified objective test” was adopted by the Supreme Court of Canada as the appropriate test for causation in consent cases. 

Causation – The Evidence

[113]        As outlined in the above law the court must apply the modified objective test and in consideration of same the court must consider the reasonable beliefs, fears, desires and expectations of the plaintiff:  Arndt at para. 9.  

[114]        This plaintiff, Ms. Cojocaru, arrived in Canada from Romania in December 2000.  She had undergone a successful caesarean for the birth of her first son Mark.  She overheard the doctors saying that it was just as well he was delivered by caesarean section as the cord was around the neck.  This is also documented in the operation note. 

[115]        This plaintiff had gone into her first delivery in Romania not knowing of any problems.  She was struck by the comments of the medical staff regarding the cord around the neck.  It emphasized to her that there is always an element of the unknown which can adversely affect the delivery, to the detriment of the baby. 

[116]        The delivery of Mark by caesarean section, while traumatic in terms of Mark’s problems not related to the caesarean, was an uneventful operation from which Ms. Cojocaru recovered without problems. 

[117]        Ms. Cojocaru’s Romanian obstetrician, Dr. Clepce, had advised her to have a caesarean section should she become pregnant again.  

[118]        The “malformation” which afflicted her first born, Mark, was extremely traumatic for her.  The doctors and the hospital did not give Mark many chances.  The doctors recommended abandoning him.  Her parents and family did not want her to take the baby home.  She had never seen anyone before with malformations.  The evidence indicates that in Romania it is normal for those children to disappear before anyone could see them.  Usually, the parents would abandon them in hospital.  Ms. Cojocaru testified as to her wants and expectations for Mark—she wanted her child to have a beautiful life – to go to school and to have a family.  When she got out of the hospital with her baby, it was a very hard life for her.  She had to move in with her parents.  She was not allowed to be visited or to visit anyone as the family did not want anyone to see the baby.  She had to take Mark for walks very early in the morning or late at night.  She usually had Mark’s face covered.  One of her friends put her hand on the baby and when he turned his face she was horrified.  She was completely isolated. 

[119]        When Mark was six months old, he had his first surgery.  Mark had surgery in the capital, Bucharest.  Ms. Cojocaru had to fight with the medical system as the doctors in her town did not give her the papers she needed to take the baby for surgery.  She got into the doctor’s office by pushing her way inside.  She recalled that they had a special section where children are brought from orphanages.  She saw other children with Mark’s malformation.  

[120]        Ms. Cojocaru testified that the children that were orphans were all alone.  There was no one to care for them.  The nurses were going in to treat them for only a few minutes.  The children were crying and suffering all by themselves. 

[121]        This experience with Mark had a profound effect on Ms. Cojocaru’s pregnancy with Eric.  When she found out she was pregnant she had all the tests done and paid private clinics in Romania to ensure that the baby was healthy. 

[122]        Ms. Cojocaru was very concerned for the future of her son Mark had they stayed in Romania.  Her cultural fears came with her to Canada, to the extent that she was very concerned to ensure that this baby have no problems.  This was clearly conveyed to Dr. Yue.  Dr. Yue’s notes confirm this. 

[123]        Mr. Cojocaru confirmed that while they were in Romania they selected a physician who had the most up-to-date equipment because they wanted the best possible care for their new baby. 

[124]        Ms. Cojocaru was extremely anxious about this delivery and wanted to do everything possible to make sure that there were no problems with the health of her baby.  It was for this reason that Dr. Yue ordered the detailed ultrasound after the first obstetrical visit. 

[125]        In addition, Dr. Clepce testified that his Romanian patients would only accept VBAC if the baby was very premature and therefore very small, or in other rare circumstances.  He testified that the percentage of his patients who would accept VBAC was “very small”.  

[126]        This evidence mirrors the evidence of Dr. Pairaudeau who testified that he has a large Romanian patient base, and that his experience with these Romanian patients is that only rarely will they accept the risks associated with a VBAC delivery.  They are extremely risk averse and view a repeat caesarean section as the safest and most appropriate way to delivery a baby after a primary caesarean section. 

[127]        In this context, the judgment of Fraser J. in Truant v. Guichon, [1996] B.C.J. No. 1794 (S.C.), is instructive.  In that case, the plaintiff complained that she did not give an informed consent when she had implants put into her breasts.  The allegation against the defendant surgeon was that that he failed to inform Ms. Truant before the surgeries of the risk that the commonly-occurring after-effect of capsular contracture might result in her breasts becoming misshapen.  In addressing causation, Fraser J. outlined the modified objective test and then stated: 

34        The circumstances of Ms. Truant were that she was earning some income as an exotic dancer and that the appearance and size of her breasts was both personally and professionally of great importance to her.  Of course, this cuts both ways.  She had especially strong interest in enlarging her breasts; but she also had an especially strong interest that their appearance not be worsened. 

35        I am daunted by the evidence that, even after receiving satisfactory information about the risk of misshapenness, two-thirds of the women who speak to Dr. Van Laeken proceed with the surgery.  If I hold that a reasonable woman in the position of Ms. Truant would have declined the surgery, would I not be holding that these women are unreasonable? 

36        The constituency here is not all women, but that segment of the female population which is disposed in the first place to consider breast augmentation and to take that consideration at least as far as an interview with a plastic surgeon.  Even disregarding the acceptance rate of patients of Dr. Guichon and using instead the acceptance rate of Dr. Van Laeken, the evidence is that most women who take the idea that far do accept the risk of deformity.  I can find no basis in the evidence to brand all these women as unreasonable.  (There is no support in the evidence for the suggestion that the acceptance rate of exotic dancers is different from that of other patients.)  I feel compelled to find that the reasonable prospective patient in Ms. Truant's circumstances would have gone ahead with the surgery, when properly informed of the risk of misshapenness. 

[128]        Similar considerations apply here.  When one looks at the constituency which applies best to Ms. Cojocaru, Romanian patients, the uncontradicted evidence indicates that Romanian patients who have had a primary caesarean section do not accept the risks associated with VBAC.  They opt instead for repeat caesarean section.  

[129]        Ms. Cojocaru’s background, and her reasonable beliefs, fears, desires and expectations, makes it clear that a reasonable person in her circumstances would not have accepted the risks associated with VBAC had they been properly explained. 

[130]        The health of her baby was her primary concern.  She was well beyond the naïveté of a first time mother who believes that nothing is going to go wrong with her baby.  She had already experienced the horrors of having a “malformed” baby, and was very anxious to avoid any possibility of any problem with this pregnancy.  She had already undergone a successful caesarean, so the prospect of a longer recovery period was of little concern.  She had been advised by her Romanian obstetrician, a physician whom she knew and trusted, that a repeat caesarean was the best way to delivery her baby.  A caesarean offered her the only means of ensuring the health of her baby, and avoiding the known risks associated with vaginal delivery, such as the umbilical cord becoming tangled around the neck.  VBAC offered essentially nothing to Ms. Cojocaru to offset her concerns regarding her overriding focus – the health of her baby. 

[131]        In the circumstances, I conclude that no reasonable person in Ms. Cojocaru’s circumstances would opt for VBAC.  

THE MALPRACTICE ISSUES

Duty and Standard of Care – The Law

[132]        With respect to the claims against all the defendants outside the consent issues, the plaintiffs acknowledge that they must establish:

1.                  That the defendants owed a duty of care to them.  This is not in dispute; 

2.                  That the defendants breached the standard of care expected of them in the circumstances of the case; 

3.                  That they have suffered an injury or loss; and 

4.                  That the injury or loss was caused by the conduct of one or more of the defendants. 

Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. ( Toronto: Carswell, 2007) at 212. 

[133]        The standard of care owed by a physician is summarized in the following passage from the Ontario Court of Appeal’s decision in Crits v. Sylvester (1956), 1 D.L.R. (2d) 502 at 508, [1956] O.R. 132 (C.A.), aff'd [1956] S.C.R. 991, 5 D.L.R. (2d) 601: 

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing...

[134]        This test applies to both nurses and physicians.  Nurses will be held to the standard of care expected of a registered nurse of average competence:  see Heidebrecht v. Fraser-Burrard Hospital Society, [1996] B.C.J. No. 3042 (S.C.).  

[135]        The standard of care applies both to diagnosis and treatment of the patient.  Once a physician has taken a person on as a patient he/she is under a duty to provide a reasonable standard of medical care, taking into account all of the factors affecting, or potentially affecting, the life and health of his patient. 

[136]        Having said this, a doctor or nurse is not bound at his peril to make no mistake.  He/she is expected to exercise reasonable care, skill and judgment.  If he/she does so he/she will not be held liable. 

[137]        A physician or nurse will not be liable for improper diagnosis or treatment resulting from a mere error in judgment, provided that he\she exercised the knowledge, skill and judgment of the average of his her group of physicians\nurses when considering the case.  As the Supreme Court of Canada stated in Wilson v. Swanson, [1956] S.C.R. 804 at 812, 5 D.L.R. (2d) 113: 

An error of judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge.  Although universally accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as faced the surgeon here.  In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation. 

[138]        Despite conformity with a standard practice, a doctor may be found negligent if the standard practice itself is found to be negligent.  In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, Sopinka J., after quoting from The Law of Torts (7th ed., 1987) by Professor John G. Fleming, stated at para. 41: 

It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent.  However, this will only be where the standard practice is ‘fraught with obvious risks’ such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise. 

[139]        With respect to the standard expected of the nursing staff in a VBAC situation, it is important to consider the “team” dynamic under which physicians and nurses work.  As Boyd J. stated in Guerineau (Guardian ad litem of) v. Seger, 2001 BCSC 291 at para. 59: 

… While the treating doctors' expectations will not set the applicable standard of care, I find that those expectations are highly relevant and probative in determining whether the nurses' standard of care has been met.  This is particularly so in the context of an obstetrical ward where the physicians and nurses work together as a close team.  

60        That dynamic was eloquently articulated by Cunningham J. in Granger v. Ottawa General Hospital, [1996] O.J. No. 2129 at 16-17:  

Whether or not this relationship exists elsewhere, more particularly in some parts of the United States, it seems to me that one of the hallmarks of the Canadian health system in a tertiary care hospital such as the Ottawa General Hospital with all of its attendant teaching responsibilities, is that those involved in obstetrics work as a team and that the interaction between members of the team is vitally important particularly in terms of reliance on one another for the provision of accurate information.  Looking carefully at the evidence of all obstetrical experts called, I have little doubt that our system of health care, with its obvious concerns for patient care as well as its defined budget considerations, could not function in any other way.  We simply do not have the financial resources to enable every professional to double check the work of other professional and because each professional within the obstetrical team has a defined role, it is essential that each person's role be carried out within a standard of care and training appropriate to the professional involved. 

If staff obstetricians, for example, cannot rely upon the staff obstetrical nurses to provide accurate assessments, given all the constraints under which they are operating, I am satisfied our system would fail...  It is not the responsibility of the staff obstetrician, assigned, during a particular shift, coverage of a number of patients including labouring mothers to sit with the mother and monitor her throughout her labour and then deliver the child.  We simply do not have the resources nor would it be necessary for this to be done.  That is why we have presumably well-trained and competent staff nurses who have a defined role within the obstetrical team.  It is not for the obstetrical nurse to fully understand all of the subtleties that may be determined on a fetal heart monitor strip, but it is the responsibility of that nurse to understand and report problems to someone else on the obstetrical team, problems such as severe persistent variable decelerations....

The Claims Against Dr. Yue – Malpractice

[140]        The next issue is whether Dr. Yue fell below the standard expected of her in recommending VBAC as an option open to Ms. Cojocaru, given the uncertainties associated with the orientation of the scar from her first caesarean section. 

[141]        The medical evidence is clear that VBAC is only appropriately recommended as an option for a patient who has had a prior caesarean section when the orientation of the original scar is known to be low transverse caesarean section, or at least where there is sufficient information to allow the attending physician to determine with a very high degree of accuracy that the original surgery was done with a low transverse incision.  It is here that the plaintiffs allege Dr. Yue fell below the standard of care. 

[142]        Analysis of this issue starts with the absence of the operative report from the initial caesarean section in Romania.  There is no dispute in the evidence that the report was an important document which should have been obtained if at all possible.  This was confirmed by Dr. Yue, Dr. Steele, Dr. Pendleton, and Dr. Pairaudeau.  Other than Dr. Yue’s suggestion that it was part of her “invariable routine” to ask the patient to obtain the operative report, no effort appears to have been made to obtain it.  I have already commented on the weaknesses of Dr. Yue’s evidence regarding her “invariable routine”. 

[143]        Dr. Yue attempted to justify recommending VBAC as an option on the basis of her “invariable routine” and her notes.  With respect, this simply does not stand up to careful scrutiny.  Again, there is reference above to demonstrate why Dr. Yue’s testimony on this point ought not to be accepted. 

[144]        Ms. Cojocaru’s evidence, and the independent evidence of Ms. Geller, Mr. and Mrs. Sarban and Mr. Cojocaru, verify that when she arrived in Canada in December 2000, her English was very poor.  Ms. Geller attended at least the first appointment with Dr. Yue and acted as a translator. 

[145]        Dr. Yue testified that she did not remember the details of the meeting, nor did she recall there being a translator/friend present.  

[146]        Dr. Yue agreed in cross-examination that asking her patient what advice she had received from her prior obstetrician was very important.  Dr. Clepce and Ms. Cojocaru testified that he advised her that her next delivery should be by way of caesarean section.  Dr. Yue charted nothing of her inquiry regarding what Dr. Clepce may have advised her.  This suggests that she failed to ask the question:  see Kolesar v. Jeffries (1976), 9 O.R. (2d) 41, 59 D.L.R. (3d) 367 (H.C.J.), aff’d [1978] 1 S.C.R. 491, 77 D.L.R. (3d) 161.  Had she asked the question, as she should have, Dr. Yue probably would not have left VBAC open as an option for Ms. Cojocaru, as she testified that such a recommendation from a prior obstetrician would likely indicate that the patient was not a suitable candidate for VBAC.  She agreed that where the orientation of the prior scar is unknown, and the prior obstetrician has recommended against VBAC, having recommended a repeat caesarean section, VBAC is contraindicated.  The fact that VBAC is contraindicated is verified by the Alarm Course Syllabus, which outlines the contraindications for VBAC.  These include previous classical caesarean section, unknown scar and the opinion of the previous surgeon.  

[147]        Ms. Cojocaru confirmed in evidence that she had requested on numerous occasions that she wanted a caesarean section.  This alone should have prompted Dr. Yue to make arrangements for a repeat caesarean section.  Instead, she assured Ms. Cojocaru that VBAC was a safe alternative and that she should have a trial of labour.  The request for a repeat caesarean section is verified by the evidence that Ms. Cojocaru requested anaesthetic information from Dr. Yue in relation to having a caesarean section.  Additionally, on the last appointment with Dr. Yue, Ms. Cojocaru asked again when the appointment could be made for the caesarean section. 

[148]        Ms. Geller’s testimony verifies that Ms. Cojocaru asked for a repeat caesarean section and Dr. Yue essentially refused, emphasizing again the benefits of VBAC over a caesarean.  In addition, Ms. Cojocaru, her brother Calan Sarban, and Alina Sarban confirmed that Ms. Cojocaru had always wanted a caesarean section.  

[149]        Finally, Ms. Cojocaru having concluded that she had to at least try VBAC, she sought some more information from Dr. Yue regarding when and how she could obtain her desired caesarean section.  She testified that she was told by Dr. Yue that she would have to wait for a while and when the pain was bad that she could have a caesarean section within three minutes.  Ms. Cojocaru believed that she had no other option of getting into the BC Women’s Hospital, where there are doctors who are trained to do caesarean sections.  She had heard that the BC Women’s Hospital was the best and she wanted to be in the best. 

[150]        The SOGC Clinical Practice Guidelines, December 1997 entitled “Vaginal Birth after Previous Caesarean Birth” states on page 2 point 4 the following:  “contraindications to labour following previous Caesarean section include previous classical, inverted T incision or unknown incision scar”.  

[151]        The Compendium of Pharmaceuticals and Specialties 2000 and 2001 confirms that labour should not be induced by Prostin in patients with a history of caesarean section. 

[152]        The BCRCP, Obstetric Guideline 1, Induction of Labour, April 1999, states that previous classical, inverted T, or unknown uterine incision is an absolute contraindication to induction of labour. 

[153]        By the time Ms. Cojocaru went into hospital, ten days past her due date, she had two delivery options – repeat caesarean section or induced VBAC.  Since induction was contraindicated, Dr. Yue owed her patient a duty to remove VBAC as an option.  Instead, she arranged for it and left her in the hands of Dr. Steele, who knew nothing about her case and who assumed, according to his testimony, that Dr. Yue had carefully worked up her patient and ensured that she was an appropriate candidate for VBAC.  Ms. Cojocaru and her baby were entitled to better. 

[154]        In light of all the above, I conclude that Dr. Yue was negligent in recommending VBAC as a delivery option where she failed to properly verify the orientation of the previous caesarean scar.  On all the evidence, Ms. Cojocaru was not a suitable candidate for a VBAC, especially when she went past her due date.  Initially, there were language barriers affecting Ms. Cojocaru’s ability to understand and communicate with Dr. Yue, and Dr. Yue should have recognized this problem.  Dr. Yue did not properly investigate an essential element of the process for recommending VBAC, and while she herself may have been “satisfied” that Ms. Cojocaru’s initial scar was a low transverse scar, she utterly failed to gather enough information to allow her to safely draw that conclusion.  She made a life-threatening decision in a situation where the information being provided was not properly verified, not communicated effectively and not properly understood.  She made an incorrect assumption in relation to the reason for the previous caesarean section, and then based on this assumption, a decision to have Ms. Cojocaru undergo a VBAC.  In doing so, she breached the standard of care expected of her. 

The Claims Against Dr. Edris & Dr. Steele

[155]        The claim against Dr. Edris is, in many respects, an alternative to the claim against Dr. Steele.  If Dr. Edris actually communicated everything relevant regarding Ms. Cojocaru’s case to Dr. Steele, as he suggested, then the responsibility for what happened falls on Dr. Steele.  If, on the other hand, Dr. Edris failed to effectively communicate the relevant facts to Dr. Steele, then he is responsible. 

[156]        When Ms. Cojocaru came into the hospital on May 21, 2001 it was Dr. Edris’ responsibility to assess her, to obtain all of the necessary information regarding her case, to communicate that information to Dr. Steele and to formulate a care plan in conjunction with Dr. Steele.  He agreed with all of this in cross-examination.  The question then becomes – what did he actually do. 

[157]        We have limited information regarding his actions because Dr. Edris has no recollection of what he did, and indeed no recollection of Ms. Cojocaru.  Dr. Steele has no recollection of his encounter with Dr. Edris, beyond the fact that he got a call from him in the morning.  Dr. Edris does has some notes of his encounter.  These notes, and their proper interpretation, are of some significance. 

[158]        The critical note made by Dr. Edris is “? LTCS”.  He has written this note in two separate places in his notes.  He agrees that the initials LTCS mean “lower transverse caesarean section”.  The issue is thus – what does the question mark mean? 

[159]        A number of medical witnesses in this case have confirmed that the use of a question mark before a clinical note means “query whatever follows”.  Thus, “? VBAC” would mean “query VBAC”.  This means that the normal medical interpretation of Dr. Edris’ note is “query lower transverse caesarean section”. 

[160]        In the context of this case, that is a very important note.  The evidence indicates two things: 

1.                  There was no proper documentation regarding the orientation of the prior caesarean section scar.  (Again, without verification of the orientation, VBAC was contraindicated). 

2.                  That Ms. Cojocaru was, at best, very ambivalent regarding VBAC.  She had been advised by her Romanian obstetrician to have a repeat caesarean section and made this clear to Dr. Yue. 

[161]        The first note followed the “? LTCS” with the notation “according to patient”.  In determining what that note means, there is rationally only one conclusion.  That is that Dr. Edris noticed that there was no proper documentation of the uterine scar, wondered about it and the patient was not able to confirm the orientation of the previous caesarean section.

[162]        As such, either Dr. Edris fell below the standard expected of him in failing to pass this information on to Dr. Steele, or Dr. Steele fell below the standard expected of him in authorizing Dr. Edris to proceed with the induction in the face of uncertainty regarding the orientation of the prior scar.  Again, the medical evidence is clear that knowledge of the orientation of the prior scar is essential to determining that this patient can safely undergo a VBAC. 

[163]        In his evidence, Dr. Edris attempted to avoid the consequences of his note by purporting to say that his “usual way” of writing this kind of note meant that the patient had told him that she had had a low transverse caesarean section.  With respect, this evidence make no sense whatsoever.  If that were the case, the “?” would make no sense.  Normal medical terminology, and normal use of the English language, denotes the word “query” to the “?”.  If the patient had told him that she had had a prior low transverse caesarean section, then the “?” would not have been used.  He would have written “according to patient, LTCS” or “LTCS according to patient”.  He certainly would not have used the “?”.  Similarly, if the patient had told him that she had had a LTCS, he would not have repeated his notation “?  LTCS” further down the page when he was outlining Ms. Cojocaru’s obstetrical history.  He would have written “LTCS – Romania – 1992” or some such similar note.  Again, he certainly would not have used the “?” before the note “LTCS”.  It simply makes no sense to do so.

[164]        The question arises – why would Dr. Edris have proceeded with the induction if there was concern regarding orientation of the original scar?  The answer to this question lies in the evidence of the nursing staff and Dr. Steele.  The evidence of what was happening on the ward that day demonstrates that this was a very hectic day for all concerned.  They were short-staffed because of the HEU job action.  They had too few staff to care for all the patients who were in labour on the unit that day.  Dr. Edris himself, it is clear, was with Ms. Cojocaru for only approximately six minutes.  I accept the evidence of Nurse MacQueen on this point, who testified that she notified Dr. Edris of Ms. Cojocaru’s arrival at 10:15 a.m., he arrived at 10:44 a.m., and she noted this on the strip.  She would have charted it if he had left to call Dr. Steele before administering the Prostin gel – there is no such notation either on the strip nor in her notes.  As such, Dr. Edris’ call that morning to Dr. Steele was before he met with Ms. Cojocaru, or after he had applied the induction. 

[165]         The evidence I accept makes clear that Dr. Edris was very busy and that at a minimum he did not do what was expected of him in terms of leaving the room to call Dr. Steele to discuss the case with him.  In addition, the evidence also makes clear that all of the medical defendants in this case considered the risk of uterine rupture to be very small.  None had actually been involved in a case where the patient who ruptured was under their direct care.  In circumstances such as this, it is easy to understand how Dr. Edris could succumb to the temptation to simply proceed with the induction rather than do everything “by the book”.  

[166]        Dr. Steele, who testified as to how busy he was that day, fell to the same temptation in relying upon the assumption that Dr. Yue had properly worked up this patient.  He conceded in his evidence that he had no communication with Dr. Yue about this patient before May 21, 2001.  He had not reviewed her chart at any point before the rupture.  In the circumstances, given his concession on cross-examination that uterine rupture was a life-threatening complication, and that the consequences of being wrong regarding any assumptions vis-à-vis the uterine scar was potentially death or permanent injury to his patient, simply relying upon such an assumption was below the standard of care expected of him.  This is especially so given his concession that as the obstetrician on call, he had control of her case. 

[167]        There are also the issues relating to Dr. Steele’s attendance (or, more correctly, his non-attendance) upon Ms. Cojocaru. 

[168]        Dr. Steele admitted that he was the person in charge of Ms. Cojocaru’s induction and delivery.  He was the only medical witness to balk at the suggestion that she was a high risk patient.  I conclude that she was a high risk patient.  All of the other medical witnesses agreed that because of her status, she was a high risk patient.  Perhaps his misapprehension regarding her risk status accounts for his lackadaisical attitude, but the evidence makes it clear that:

1.                  Dr. Steele sought no information from Dr. Yue about this patient, even though he had never seen her before and knew nothing about her; 

2.                  he made no effort to see her when he was advised that she was in for induction; 

3.                  he made no effort at any time during the day to come and assess her, notwithstanding her status as, at a minimum, his assessment, a “medium high risk” patient; and by any reasonable assessment, a high risk patient. 

4.                  he made no effort to come and assess her when it was reported to him that she was having difficulties in coping with her labour;  

5.                  he left the hospital and attended, for reasons which are not clear, at Mount Saint Joseph Hospital knowing that the only person who could attend to any emergencies was the third year resident Dr. Green, even though he was the person who was responsible for the health and welfare of all the patients of his call group; 

6.                  he did not even check on Ms. Cojocaru’s status before leaving the hospital.

[169]        A similar situation arose in Alberta a number of years ago.  In Edmison v. Boyd (1985), 62 A.R. 118 (Q.B.), aff’d (1987) 77 A.R. 321, 51 Alta. L.R. (2d) 43 (C.A.), the defendant was entrusted with the care of a high risk patient during her labour and delivery.  She was high risk because she was very short, had renal rickets and a heart murmur.  Her situation was somewhat unique in that very few patients presented with that constellation.  The trial judge found, that relying upon the judgment in Anderson v. Chasney, [1949] 2 W.W.R. 337, 4 D.L.R. 71 (Man. C.A.), which held that expert evidence is not necessary in cases where common sense dictates what the standard of care should be, it was obvious that there had been a want of care with respect to the defendant’s conduct.  He was aware that there were some issues with respect to the health of the baby and yet treated her as a routine patient who could be monitored as usual by the nursing staff.  The court found that given his knowledge of the potential for problems with this labour and delivery, he should have gone and assessed the patient when she arrived in hospital in order to satisfy himself that all was well.  Instead, he waited until he was called.  The court found that this fell below the standard of care.  The Alberta Court of Appeal upheld the trial judgment. 

[170]        The same analysis applies in this case, but for slightly different reasons.  Here, Dr. Steele knew nothing about Ms. Cojocaru other than the fact that she was a VBAC patient who was being induced.  He sought no information from Dr. Yue and he made no effort at any time to come and assess her.  When he was called at 18:00 hours with news that his patient, whom he knew or should have known had not seen a physician at all during the day, was having problems with her pain levels, he should have come to assess her.  Had he done so, he would have realized that she was having continuous pain and realized that she was facing an impending rupture.  Instead, he left the hospital, without checking on her.  With respect, this simply cannot be in keeping with the standard expected of a reasonably competent obstetrician who is in charge of a high risk patient.  

[171]        Of particular concern regarding Dr. Steele is, even at trial, his continuous demonstration of the worst aspects of medical arrogance.  Under questioning, he stated how he, while at Mount Saint Joseph, got a call about Ms. Cojocaru’s uterine rupture.  He emphasized in his evidence and demeanour how quickly he reacted.  He testified that he dropped everything at Mount Saint Joseph Hospital and rushed off to BC Women’s Hospital, suggesting, it appears, that this was a gallant thing for him to do.  With respect, Ms. Cojocaru was his patient, his high risk patient, who he had not bothered to check on all day, who was now experiencing extreme trauma.  No accolades are due to Dr. Steele for his conduct. 

[172]        I conclude that Dr. Edris breached his duty of care and the standard of care expected of him when he proceeded with an induction when faced with an unknown or uncertain orientation of the uterine scar.  He did not communicate with Dr. Steele prior to being faced with this fact and proceeded on the induction. 

[173]        I conclude that Dr. Steele breached his duty of care and the standard of care expected of him when he failed to attend to a high risk patient in his care.  He should have assessed his patient.  When advised that his patient, a high risk patient, was experiencing trouble such that a nurse placed a call to him, he did not attend.  Rather, he left the hospital. 

The Claim against the Nursing Staff – Nurse MacQueen

[174]        In regards to the claim against Nurse MacQueen, I have concluded that the claim must fail. 

[175]        As to the suggestion that Nurse MacQueen fell below the standard of care by failing to notify the attending physician of the unknown orientation of the uterine scar, clearly Dr. Edris, by his notes, noted this lack of certainty regarding the uterine scar, and whether it represented a lower transverse caesarean section.  The responsibility as such shift to Dr. Edris.  It was in his mind when he examined Ms. Cojocaru in Nurse MacQueen’s presence. 

[176]        With respect to Ms. Cojocaru’s communication to the effect that she desired a repeat caesarean section, that I conclude was the responsibility of the doctors, not Nurse MacQueen as an admitting nurse. 

The Claims against the Nursing Staff – Nurse Bellini and Nurse Voerwold

[177]        The central allegations against these two nurses relate to their failure to properly monitor Ms. Cojocaru after she arrived in the labour and delivery suite. 

[178]        With respect to this aspect of the plaintiffs’ case, there are serious credibility issues as between the defendants and witnesses called on behalf of the plaintiffs.  These issues include:

·         Was Nurse Bellini in the room the whole time as she suggested, or was she only in the room infrequently as testified to by Mr. and Ms. Cojocaru and Mr. and Mrs. Sarban; 

·         Did Ms. Cojocaru suffer from constant pain for the half hour or so prior to 18:00 or was she comfortable and relaxed between contractions as suggested by Nurse Bellini; and 

·         Was Mr. Cojocaru in the room with his wife or was she alone as suggested by Nurse Bellini? 

[179]        In assessing the witnesses, and determining these credibility issues, it is important that the court assess credibility keeping in mind the comments of O’Halloran J. in Faryna

[180]        Nurse Bellini testified, in the main, on the basis of her notes.  The credibility of the notes therefore becomes critical.  With respect to those notes, a number of critical flaws were demonstrated during Nurse Bellini’s testimony.  Of significant note, Nurse Bellini did not follow the appropriate protocols for entering late entries.  Dr. Keith testified that the proper way of entering a late entry is to date and time it when it is actually entered, and then to indicate “at such-and-such a time, X happened”.  Nurse Bellini, in her notes which she actually identified as late entries, dated and timed them as of the time the events purportedly happened. 

[181]        In addition, and much more importantly, all of the entries made after 17:45 were made after she realized there was a problem.  The entries which were marked as “late entries” were made after the delivery of the infant plaintiff and therefore after she knew that he had likely suffered a serious injury.  They were not in any way the independent routine entries which are the hallmark of reliable medical records.  It is also apparent from her testimony that the entries following 17:45, and before 18:41, were made after she realized that something was wrong.  She testified that her practice was to make a note and sign or initial it at the end.  Her initials appear after the 17:45 note and then not again until after the 18:28 entry.  She testified in cross-examination that the initial which appears in the 18:10 note is simply to initial the alteration to the note – the word that had been scratched out.  Thus, not only is it clear that the notes were likely late entries, they are not so marked, which raises immediate concerns about their reliability, but they were likely made at a time when Nurse Bellini knew that she had missed vital information about Ms. Cojocaru’s labour and delivery and therefore had likely contributed to her injury and that of her baby.  Again, they are a long way from the independent routine notes which form the basis of reliable and credible medical records.  

[182]        Nurse Bellini created two separate sets of notes, aside from the chart late entries, regarding what happened in this case.  Her only explanation for creating these notes was that she wanted a record of what had happened.  This makes no sense.  First, the partogram entries stand as her official record of what happened.  There is no need for these extra sets of notes.  The notes do not contain any information which is not in the partogram.  They cannot assist her recollection in any manner beyond what is in the partogram.  There is no purpose to be served by creating them.  Secondly, the suggested reason for making the notes, to have a record of what happened, does not explain in any way why she would create two sets of notes.  Again, there is no new or unrecorded information.  It is simply another rendition of what happened.  It makes no sense to create two separate copies, one much longer than the other, if you were trying to simply have a record of what happened. 

[183]        I reluctantly conclude, having listened to the testimony of Nurse Bellini, and assessing her demeanour and her words carefully, that Nurse Bellini, in making separate sets of notes, was practicing how to construct what to put in the partogram, after realizing that the baby had likely suffered a serious injury on her watch.  That is the best explanation for her actions, and it points to knowledge on her part of her role in the injury suffered by the infant plaintiff.  It points to her attempts to cover her involvement. 

[184]        On a perhaps collateral point, Nurse Bellini did not even recall Mr. Cojocaru being in the room, although his presence was confirmed by Ms. Cojocaru, Mr. and Mrs. Sarban and even Nurse Voerwold.  This, plus what is noted above, has led me to conclude I can put no weight on the evidence of Nurse Bellini. 

[185]        Ms. Cojocaru’s testimony regarding what happened is backed up by the testimony of three witnesses – her husband Marcel, her brother Calin Sarban and his wife Alina Sarban.  No real challenge to their credibility was made in cross-examination by defence counsel.  They were steadfast in their recollection of events.  In a situation like this, where there are real questions regarding the reliability of the nursing notes, and no physician notes are available because no physician came to see Ms. Cojocaru before Dr. Green arrived at 18:20 hours, the ability of the witnesses to recall the events becomes critical. 

[186]        For those present, this was an extremely important event in their lives.  They were being forced to live through a very trying and difficult experience.  The events will likely stay with them for the rest of their lives.  For the nurses, however, this was, until the crisis, just another busy day at the hospital.  There is nothing to suggest the events were other than routine up to the rupture.  Indeed, that was the thrust of the nurses’ evidence – until the rupture, they detected nothing unusual at all.  Afterwards, they purport to recall vivid details regarding abdominal palpations between contractions, etc., none of which are charted. 

[187]        I have concluded that the evidence of the family is to be preferred wherever there is a conflict with the evidence of the nurses. 

[188]         As previously discussed, uterine rupture is a life-threatening complication for both the mother and the baby.  As already noted, the signs and symptoms associated with a uterine rupture, or an impending rupture, are set out in the Guidelines published by the British Columbian Reproductive Care Program.  These Guidelines are followed in the BC Women’s Hospital. 

[189]        With respect to an impending rupture, one must look for:

·         Inadequate labour progress (cervical dilation, fetal descent) despite good contractions; 

·         Incoordinate uterine activity; 

·         Restlessness and anxiety; and 

·         Lower abdominal pain between contractions. 

[190]        Nurse Bellini agreed in cross-examination that she understood in May 2001 that when she acts in the capacity of a high risk nurse, she is working as part of a team and that she was to be the eyes and ears of the attending physician.  She agreed that as Dr. Steele was not there, it was very important for her to pay attention and to give him reports of what was going on to maximize the care for the mother and the baby.  She agreed that giving accurate and timely reports to the attending physician is critical and that in a VBAC, her primary role is to alert the physician to anything that could be a potential problem. 

[191]        The evidence reveals that Ms. Cojocaru was showing signs of an impending rupture as noted above.  Her labour was not progressing and she was showing signs of restlessness and anxiety soon after her admission to the labour and delivery suite.  She was also demonstrating clear signs of lower abdominal pain between contractions.  She was unable to converse. 

[192]        Clearly, it was important to the health of both mother and baby to catch this as an impending rupture if at all possible.  It is here that Nurse Bellini fell below the standard expected of her. 

[193]        The signs and symptoms that may be associated with a complete uterine rupture can be distinguished from the above signs, in that the rupture now has already occurred, and are as follows: 

·         Sudden non-reassuring fetal heart pattern; 

·         Unusual abdominal/uterine pain; 

·         Cessation of contractions or incoordinate uterine activity; 

·         Unexplained vaginal bleeding; 

·         A sudden onset of maternal tachycardia and hypotension; 

·         Excessive fetal movement; 

·         Fetal parts palpated through the abdominal wall; and 

·         Presenting part higher than found previously. 

[194]        All of the medical witnesses who testified on this point, including Dr. Pendleton, and Nurse Bellini, agreed that by the time the situation reaches this point, both mother and baby are in serious trouble. 

[195]        Upon a review of the evidence it is clear that the possibility of an emergency or even a serious situation was not considered until the fetal heart rate dropped (fetal bradycardia).  This is a late sign of uterine rupture.  As the events showed, it was too late to wait until this point to react. 

[196]        Dr. Mitchell’s report dated July 16, 2007 states: 

In all labours involving a trial VBAC, the obstetrical team must be especially vigilant for signs or symptoms that might indicate imminent or actual uterine rupture.  One such symptom is an excessive amount of abdominal pain or a change in the nature of this pain. 

[197]        He goes on to say: 

The nursing notes from 17:45 until Dr. Green arrived at 18:20 are written out of sequence and several ‘late entries’ have been added.  At 17:45 Nurse Bellini noted that the cervix was effacing well, soft and one centimetre dilated.  Contractions were 5-6 per 10 minutes and described as ‘moderate’ and the patient was ‘coping fairly well’.  Over the next 20 minutes, Ms. Cojocaru's pain changed rapidly to ‘more distressed’ then ‘very distressed’.  This discordance between the palpable strength of the contractions by an experienced labour and delivery nurse and the apparent change in degree of pain induced distress warranted further diagnostic action.  This would include a physical assessment of the patient by the nurse or an immediate call to the attending physician or on-call resident.  At the very least, this would include assessment of pulse and blood pressure as well as an abdominal examination to assess for signs of tenderness, guarding and rebound tenderness that, in these circumstances, would suggest uterine rupture.  Notation of this assessment would be a very important part of the record.  There is no record that such an assessment was performed or that a physician was notified.  Indeed, the physician was not called until there was persistent fetal bradycardia.  In my opinion, this also fell below the expected standard of care in 2001. 

I believe that more careful attention to any or all of these points would have prevented or ameliorated the fetal asphyxia that led to the adverse outcome for Eric Cojocaru. 

[198]        In his report dated July 20, 2007, Dr. Mitchell confirms: 

I believe that the uterine rupture occurred between 17:45 and 18:05, during the period of time when Nurse Bellini noted the rapidly escalating nature of Ms. Cojocaru's pain.  Had Dr. Greene been called during that time frame, I believe he would have examined the patient and found clinical evidence of uterine rupture, most notably signs of intraperitoneal hemorrhage.  Having made the diagnosis of uterine rupture, I believe he would have proceeded to emergency caesarean section at that time.  This would have resulted in delivery of the baby 10-20 minutes earlier than what actually occurred. 

[199]        It is to be noted here that in stating this conclusion, Dr. Mitchell’s opinion proceeded on the assumption that the nursing notes were accurate.  I accept the family evidence that the constant uterine pain began much sooner.  Nurse Bellini should have picked up on the constant uterine pain sooner, and the intervention would have occurred that much sooner.  She failed to do so because she was not, as directed, in the hospital room with Ms. Cojocaru.  I accept the evidence of the family members on this point, and reject the evidence of Nurse Bellini as to her attendance. 

[200]        Nurse Radmanovic also testified, and her report confirms that, in her view, the attending physician should have been called in much sooner than he was.  When the membranes rupture there can be blood but the nurse should check especially in a VBAC.  It must be distinguished from active bleeding which could be placental separation.  She confirmed that an experienced nurse should be able to distinguish between “show” and “active bleeding”.  She would notify the obstetrician if there was any kind of bright red bleeding in a VBAC patient. 

[201]        Nurse Radmanovic also stated that there was hyperstimulation and that she would have told Dr. Steele that there were very frequent contractions and it was a VBAC patient.  She confirmed that it is prudent in a VBAC situation to do the labs sooner rather than later.  Dr. Steele said “later”.  This indicates that he was not fully apprised of the current situation.  A VBAC patient who cannot speak due to pain, and who is having very frequent contractions, ought to be assessed. 

[202]        Dr. Pendleton explained that the scar is a weak point and that there is a continuum of separations which can occur — from a minimal separation of the scar with little or no consequence to a full blown rupture such as occurred in this case.  More importantly, he testified that a patient can move along that continuum as a scar begins to separate, causing constant pain between contractions until it finally blows and the uterus ruptures completely.  That is what appears to have happened in this case. 

[203]        Dr. Pendleton rejected that as a conclusion here, but based his opinion on the premise that the pain of an impending uterine rupture would not have allowed Ms. Cojocaru to have gone to the bathroom alone.  He was not aware of the evidence that she was helped to the bathroom by her husband and her sister-in-law, evidence I accept. 

[204]        He confirmed that, if there is constant pain even in the period when the uterus is finished the contraction, is either a sign that the mother is not coping well or there is something of concern happening.  In this context, he confirmed that the nurse must act as an advocate for her patients, both mother and baby.  He also assumed for the purpose of his report that the notes are made contemporaneously until 18:14.  Dr. Pendleton confirmed that a small percentage of patients suffer pain in early labour but that he would not expect the vast majority of patients to be in significant pain when at one centimetre dilation. 

[205]        Therefore, had the nursing staff noted and reported these signs, the resident Dr. Green would have been able to act sooner and Dr. Steele would have been contacted sooner allowing for the earlier delivery of Eric Cojocaru, therefore preventing his catastrophic brain injury. 

[206]        Dr. Keith agreed that Ms. Cojocaru should have had one-to-one nursing care.  Her opinion that the nurses here had met the standard expected of them was based on the premise that Ms. Cojocaru’s labour was uneventful until it took a dramatic and unexpected turn at 18:18 hours with the fetal bradycardia.  That is not what happened in this case.  The evidence indicates a deteriorating situation which was missed by Nurse Bellini, as she was absent.  Ms. Cojocaru did not have one-to-one nursing care.  She was left alone. 

[207]        Ms. Cojocaru’s evidence confirms what was going on.  She testified that for most of the day, she was having “normal” contractions (pain with relief between contractions) but that all changed sometime after arrival in the labour and delivery suite.  Then she started having constant pain, with no relief between contractions.  This most important clinical symptom was missed by Nurse Bellini, who was not present in the room, and if present, perhaps periodically, did not properly assess the situation. 

[208]        Nurse Bellini also missed another important sign, blood.  Mrs. Sarban and Mr. Cojocaru both testified that when they got Ms. Cojocaru up to go to the bathroom, there was blood on the blue pad which had been placed underneath her on the bed and there was blood on the floor leading to the bathroom.  Mr. Cojocaru testified that it looked like the blood which you get when you cut your finger – bright red blood.  This is the same description given by the various medical witnesses regarding how you distinguish “show” from bleeding.  Show is old brown blood mixed with mucus.  Bleeding is bright red blood.  Bleeding must be reported as it is an indication of an impending rupture.  It was missed by Nurse Bellini because she was not in the room and was not paying attention to what was going on with her patient.  

[209]        The evidence of Mrs. Sarban verifies that Nurse Bellini was absent for most of the afternoon, and that even when confronted with a request for a caesarean section, she declined to even contact the doctor.  She dismissed the request as “not necessary”.  In cross-examination of Mr. Cojocaru and some of the other witnesses, it was suggested that a second nurse (presumably Nurse Voerwold) was in the room continuously from 17:45 to 18:05.  Nurse Voerwold herself rejected this.  Clearly, no one was there. 

[210]        There was evidence in this case that the nurses were monitoring the fetal heart rate from the nursing station.  It is uncontested that until the fetal bradycardia, the fetal heart rate was not a concern.  The evidence indicates that changes in the fetal heart rate are a late sign of uterine rupture.  It would appear that Nurse Bellini relied upon the strip to determine that all was well, and failed to notice the important signs and symptoms which were indicative of the impending rupture, which she would have noticed had she been attentive to her duties and present in the room. 

[211]        I conclude that:  there was a clear failure on the part of Nurse Bellini to communicate regarding the status of her patient; a clear failure on the part of Nurse Bellini to monitor/supervise Ms. Cojocaru; and a failure on the part of Nurse Bellini to notice and report unusual signs potentially indicative of a uterine rupture/dehiscence.  Finally, there was a failure by Nurse Bellini to communicate the concerns of the patient and patient’s family to the patient’s doctor and to investigate the repeated requests for a caesarean section.  

[212]        The care of Nurse Bellini clearly falls below the standard of care expected of a nurse in this situation. 

[213]        I, however, make no such finding against Nurse Voerwold, who assigned Nurse Bellini her responsibilities and who assumed Nurse Bellini would attend to them.  Nurse Voerwold assigned Nurse Bellini to the care of Ms. Cojocaru before any of the significant signs of pending uterine rupture happened. 

Causation – The Law

[214]        The issue of causation came before the Supreme Court of Canada in Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333.  In that case, the plaintiff, the operator of a ice‑resurfacing machine, was badly burned when hot water overfilled the gasoline tank of the machine, releasing vapourized gasoline which was then ignited by an overhead heater, causing an explosion and fire.  The plaintiff sued the manufacturer and distributor of the machine for damages, alleging that the gasoline and water tanks were similar in appearance and placed close together on the machine, making it easy to confuse the two.  The trial judge dismissed the action.  He found that the plaintiff did not establish that the accident was caused by the negligence of the manufacturer or distributor.  The Alberta Court of Appeal ordered a new trial, concluding that the trial judge had erred in both his foreseeability and causation analyses.  The Supreme Court restored the trial judgment.  In dealing with the causation aspect of the case, McLachlin C.J.C., speaking for the court, stated: 

20.       Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence.  It is neither necessary nor helpful to catalogue the various debates.  It suffices at this juncture to simply assert the general principles that emerge from the cases. 

21.       First, the basic test for determining causation remains the ‘but for’ test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that ‘but for’ the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute. 

22.       This fundamental rule has never been displaced and remains the primary test for causation in negligence actions.  As stated in Athey v. Leonati, at para. 14, per Major J., “a[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”.  Similarly, as I noted in Blackwater v. Plint, at para. 78, “a[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities”. 

Causation – The Evidence

[215]        With respect to Dr. Yue, recommending VBAC to Ms. Cojocaru as a delivery option, without verifying the location of the previous uterine scar, was a breach of the standard expected of her.  The issue is – did this breach cause the injury complained of?  

[216]        The test for causation is the “but for” test.  That is, “but for” the negligence of Dr. Yue in recommending VBAC as a delivery option, would the plaintiff have suffered the injuries complained of?  Dr. Yue seeks to avoid liability in this case by arguing that since the operative report by Dr. Clepce indicates that Ms. Cojocaru had a low transverse caesarean section, the failure to obtain the report is unrelated to the injury suffered.  This, however, misses the point.  The negligence complained of is negligence in recommending VBAC as a delivery option.  Had Dr. Yue not done this, Ms. Cojocaru would have had a repeat caesarean section and the injury would indeed have been avoided. 

[217]        It is not sufficient to say “had she properly investigated the original operative report, Dr. Yue may well have recommended VBAC”.  The fact is that she did not investigate it, and her recommendation was made without obtaining the operative report and without properly investigating the issue.  The negligence was in the recommendation.  Causation flows from the negligence proven. 

[218]        With respect to Dr. Edris, the negligence was in proceeding with a VBAC induction in the face of indications that the issue of the orientation of the scar had not been established, and in the face of indications from the patient that she wanted a repeat caesarean section.  Dr. Edris’ notes indicate he knew or ought to have known of the deficiencies in the medical records regarding the orientation of the uterine scar. 

[219]        As for Dr. Steele, he had no contact at all with Dr. Yue.  Dr. Steele had no contact with his patient.  If he had, he would have been informed of Ms. Cojocaru’s desire for a repeat caesarean section.  When faced with phone calls concerning his high risk patient, he chose, rather than to attend, to leave the hospital.  If Dr. Steele had done any aspect of care expected of a physician, it is clear Ms. Cojocaru’s situation would have been averted in time so that no damage was done to Eric. 

[220]        With respect to Nurse Bellini, the causation issue is slightly different.  Nurse Bellini was faced with a patient who had already been induced.  Her task, which she failed to properly perform, was to carefully monitor and report changes in her condition which might indicate a possible problem.  Had Nurse Bellini done her job, it is likely that Dr. Green would have been called in no later than 18:00 hours.  The uncontested evidence of Dr. MacNab, Dr. Armstrong and Dr. Solimano is that when a fetus suffers from an acute asphyxial insult, he has 10-15 minutes to be rescued, beyond which brain damage begins to set in.  Dr. Green arrived immediately upon being called.  He did a very good job of recognizing what was going on and reacting to the emergency in place of the missing Dr. Steele.  He organized an emergency caesarean section and had the baby delivered by 18:41.  Had he been called by 18:00, the baby likely would have been delivered by 18:20, well before brain damage set in. 

[221]        In other words, but for the negligence of these noted defendants, Eric Cojocaru would have been delivered by repeat caesarean section without induction, or he would have been delivered by emergency caesarean section well before 18:41.  In either case, he would not have suffered his brain injury. 

[222]        Turning to the issues raised earlier in these reasons, I conclude the following: 

1.      As against Dr. Yue:  Dr. Yue fell below the standard expected of her in recommending VBAC as an option available to Ms. Cojocaru given the uncertainties associated with the orientation of her scar from the 1992 caesarean section. 

·         Monica Cojocaru did not provide an informed consent to having a prostaglandin induction. 

·         Monica Cojocaru did not provide an informed consent to having a VBAC delivery. 

2.      As against Dr. Edris:  Dr. Edris fell below the standard of care expected of him when he proceeded with prostaglandin induction in the face of an unknown uterine scar orientation. 

3.      As against Dr. Steele:  Dr. Steele fell below the standard of care expected of him to attend upon Ms. Cojocaru generally, and specifically when it was reported to him that she was very distressed with her contractions and having frequent contractions.  In failing to do so, he fell below the standard of care expected of him. 

      Dr. Steele additionally fell below the standard of care expected of him by failing to remain at BC Women’s Hospital to be available to respond to emergencies given that he was the on call physician responsible for providing emergency services. 

4.      As against nursing staff:  Nurse Bellini fell below the standard of care expected of her in failing to properly monitor Monica Cojocaru during her labour, by failing to communicate the concerns of the patient and the patient’s family and to investigate the repeated requests for repeat caesarean section and failing to notice and report unusual signs potentially indicative of uterine rupture/dehiscience. 

5.      With respect to causation:  The negligence of the defendants caused and contributed to the injuries suffered by Eric Cojocaru and Monica Cojocaru.  

DOES THE LAW BAR A CLAIM TO DAMAGE DONE WHILE ERIC WAS A FETUS?

[223]        After final submissions, counsel raised in separate written submissions the issue of a physician’s duty of care to a fetus.  It was argued by the defendant doctors, based on a recent decision of the Ontario Court of Appeal in Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, that it is no longer clear in law whether a physician owes a duty of care to a fetus. 

[224]        Since receiving the written argument, I have had the benefit of reviewing a recent decision of this court, Ediger (Guardian ad litem of) v. Johnston, 2009 BCSC 386, a decision of Madam Justice H. Holmes.  I agree with her conclusion, at para. 213, that Paxton does not require a “reconsideration of the law in this province that a physician’s duty of care to a pregnant woman encompasses her fetus”.  I adopt her reasoning.  There is no bar to Eric Cojocaru’s claim to damages. 

DAMAGES

The Nature of the Injury

[225]        Many experts have testified regarding the nature of Eric’s brain injury.  It has been described as diffuse, focal, global, profound, severe, static and non-progressive.  There has been a great deal of debate regarding the exact location of the damage.  What is not in dispute, however, is that the damage to Eric’s brain is permanent, it will not get better and that it will effect every single aspect of his life now and until the day he dies. 

[226]        Hypoxic ischaemic encephalopathy (“HIE”), refers to an acute incident during which a lack of oxygen and nutrients to the infant brain causes depressed neurological functioning.  When Ms. Cojocaru’s uterus ruptured, Eric was extruded into her abdomen causing a placental abruption.  In essence, Eric’s brain was starved of oxygen and nutrients for over 30 minutes.  The impact was immediate, the effects permanent and the results devastating.  

[227]        The damage to Eric’s brain has caused a condition commonly referred to as hypotonic cerebral palsy.  The term cerebral palsy simply refers to the myriad of motor and physical problems that relate to a brain injury.  In Eric’s case, his cerebral palsy is also characterized by floppy, low muscle tone or hypotonia.  The damage has also significantly impaired Eric’s ability to think, to learn and to develop social skills. 

[228]        The medical experts who gave evidence on behalf of both the plaintiff and the defendants have identified that the areas of Eric’s brain that sustained the most damage are in the subcortical region of the brain, namely, the basal ganglia, the brain stem, the hippocampus and the multicortex.  These are the areas of the brain that control, amongst other things, gross and fine motor skills, speech, movement and memory.  They also act as a relay station between various subcortical regions of the brain and the cerebral hemispheres, including the frontal lobe. 

[229]        The most obvious damage to Eric’s brain has been sustained in the areas outlined above.  This conclusion is supported by the objective findings of the various experts who have assessed Eric, who have reviewed his radiological images and who have observed him at school and in his home.  

[230]        Less obvious, but also important, is the damage that likely occurred to the cerebral hemispheres, as well as how damage to one part of the brain impacts upon other parts of the brain. 

[231]        Dr. Hill, the paediatric neurologist who testified for the defendants, was asked in cross-examination:  

Q         Dr. Hill, if - - if Eric’s deficits are limited to motor functioning deficits, you would expect him to react, would you not, to the cognitive challenges he faces in school in a similar manner as his peers do? 

A          I don’t remember ever saying that I thought that his problems were only motor.  I said they were principally motor. 

Q         So you agree that Eric does have cognitive functioning difficulties? 

A          Well, what I said was that Eric had injury to his hypocampi and the - - the hippocampus, plurally hypocampi, are parts of the brain that are associated with memory and the laying down of memory.  So I would imagine that would have some impact on his learning ability.  Of course whenever you get injury to one part of the brain, it may well influence to a certain extent the function of other parts.  Because most of these parts of the brain are interconnected. 

[232]        Regarding damage to the cerebral hemispheres and the frontal lobes in particular, Dr. Hill explained that such damage does not necessarily show up on magnetic resonance imaging, despite the current state of their technological sophistication.  Regarding damage to Eric’s frontal lobes he simply said “maybe there is and maybe there isn’t.  I don’t know and nobody knows”. 

[233]        Dealing first with Dr. Hill’s assertion that all parts of the brain are interconnected, Dr. Hahn’s evidence was very instructive.  Dr. Hahn has assessed, treated and managed the care of more children suffering from cerebral palsy than any other expert who testified in this case.  He has dealt with thousands of such children over the past 33 years.  According to Dr. Hahn: 

… what sets us apart and enables these higher-order functions is the sophisticated development, particularly of our frontal lobes and how they interconnect, very, very dependently, really, with all the parts of the brain really except perhaps the brain stem.  So there is a very active interplay between the old brain (ie. subcortical region) and the new brain (ie. cerebral hemisphere). 

[234]        Then during cross-examination he stated: 

I also know that to achieve full language function and full intelligence, a child needs to be absolutely efficiently connected between the cerebellum, for example, the central grey tissue, and the cerebral hemispheres, particularly the part of the cerebral hemisphere that is most involved in language function.  And that is most involved in language function.  And this is where, as we discussed already, his primary deficit in terms of brain structure exists as a result of this deprivation of oxygen glucose.  So even if he did not have what I suspect he has, a partial loss of tissue mass through the cerebral hemispheres, I know that he will not have efficient connection just by virtue of his pattern of pathology. 

[235]        There were attempts in cross-examination to move Dr. Hahn off this position by trying to reinforce the defence view that Eric’s most obvious disabilities are limited to damage in the subcortical regions of the brain.  Again Dr. Hahn explained that these obvious disabilities, fine and gross motor function, speech and so on are linked to the damage in the subcortical region but went further and said: 

But I’d like to add to that that the central brain is really a relay station through which all ascending and descending pathways go and sign up.  So there is no brain function that doesn’t involve the central brain. 

[236]        In addition to the interplay between the subcortical regions of the brain and the cerebral hemispheres (i.e. frontal lobe), there is also a high likelihood that there has been direct damage to the cerebral hemispheres caused by the HIE. 

[237]        According to the defendants’ expert, Dr. Hill, as already stated above, “maybe there is and maybe there isn’t”.  He simply could not say one way or the other.  Dr. Hahn, however, is more definitive in his views.  Dr. Hahn testified that: 

… the abrupt onset of oxygen deprivation and lack of autoregulation caused a great loss of central grey tissue functioning, but fortunately there was preservation of at least a considerable part of the cerebral hemispheres. 

But I also believe that there will have been a bit of a diffuse component affecting the cerebellum brain stem and cerebral hemispheres. 

He went on to say: 

One has to look at the whole child here, and particularly one wants to pay attention to the overall gross of the brain... 

… to be among one hundred children within the lower five in terms of overall head circumferences is a clinical marker that one pays attention to that suggests that the cerebral hemispheres may not be progressing in their trajectory in accumulate possessing a brain mass toward adult maturation at the rate that they should. 

So that’s another cautionary flag for me.

[238]        Later again he said: 

Because I do suspect that he will have had a mild tissue deficit in the development of the cerebral hemispheres based on his prolonged oxygen deprivation.  … 

[239]        I accept the clear and uncontradicted evidence, in terms of Eric’s current behaviour and test results, that support the following medical findings: 

(a)               there has been significant damage to the subcortical regions of Eric’s brain;  

(b)               there has been direct damage to Eric’s cerebral hemispheres; and 

(c)               that damage to the subcortical regions of Eric’s brain have had a profound impact upon the functionality of Eric’s cerebral hemispheres (i.e. effect of interconnectivity). 

[240]        There are a number of significant impacts this brain damage has had upon Eric’s life, and will have on his future. 

[241]        At six years of age, Eric struggles with simple tasks.  He was shown to hit himself out of frustration because he cannot put his own socks.  Eric has to be fed foods like an infant.  He has to be cleaned after attempts at feeding himself, and generally after eating.  This is no doubt particularly frustrating at school. 

[242]        Eric does not walk or talk or do anything else remotely like his peers.  He is a severely disabled young boy. 

[243]        Adolescence is a time when “fitting in” and making meaningful friendships means a great deal.  It is a time of more complex learning or abstract thinking.  Adulthood is a time likely for partnerships, careers, work that is meaningful and satisfying, the comfort and security of his own home, and possibly a family. 

[244]        Because of his brain injury, the reality of Eric’s life will be radically different from the “normal” life outlined and the life that most take for granted. 

NON-PECUNIARY DAMAGES

Eric Cojocaru

[245]        As already stated, the effects of Eric’s injury are permanent and their impact will be devastating.  His disabilities will affect every single interaction Eric has with the world. 

[246]        In Spehar (Guardian ad litem of) v. Beazley, 2002 BCSC 1104, aff’d 2004 BCCA 290, 31 B.C.L.R. (4th) 223, the trial judge awarded the maximum non-pecuniary damages, as set by the “trilogy”.  In that case, the plaintiff had sustained a brain injury but did not sustain any significant physical injuries.  In affirming the trial judge’s award, the British Columbia Court of Appeal said at paras. 14-15:  

14.       The trial judge took no time thereafter in adopting the submissions made on behalf of Ms. Spehar that her injuries ‘should attract the upper limit of non-pecuniary damages’ of $280,000.  The trial judge referred to Lindal v. Lindal (No.2), [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263, 34 B.C.L.R. 273 wherein the court, in refining the reasoning in the ‘trilogy’ (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Thornton v. School District 57 (Prince George), [1978] 2 S.C.R. 267, and Arnold v. Teno, [1978] 2 S.C.R. 287), noted that the injuries suffered by the plaintiffs in the trilogy were not identical, but each received an award of the upper limit.  The trial judge also noted this Court’s comments in Blackstock v. Patterson (1982), 35 B.C.L.R. 231 (C.A.) at 237-38, [1982] 4 W.W.R. 519 (B.C.C.A.): 

Once it was determined that the plaintiffs suffered severe personal injuries, the court concluded as a matter of policy that the limit for non-pecuniary damages should be fixed at $100,000.  This conclusion...was based on the premise that in the case of all ‘severely injured plaintiffs’, in order to avoid extravagant claims, an upper limit of $100,000 should be imposed.  It follows, that even if the respondent’s injuries could be said to be different from or not quite as severe as those suffered by the plaintiff in the trilogy cases, her injuries were found by the trial judge to be ‘devastating’, and, therefore, fell within the $100,000 category fixed in Lindal and the trilogy cases. 

15.       In the case at bar, the appellants draw a distinction between the injuries suffered by Ms. Spehar and the injuries suffered by the plaintiffs in the trilogy.  They also cite cases in this jurisdiction wherein trial judges have awarded less than the judicial cap for extremely serious injuries.  On the former, I point to the above quotation from Blackstock as an answer.  On the latter, lesser awards in other cases do not dilute the principle enunciated in Blackstock

[247]        In Audet (Guardian ad litem of) v. Bates, [1998] B.C.J. No 678 (S.C.), the parties agreed on the maximum amount of $260,000 for non-pecuniary damages for a five year old child with cerebral palsy.  In that case, at para. 69, the infant plaintiff was described as a “sociable child with above average intelligence”, but in recognizing that she would never overcome her physical disabilities and that she would always “be both aware and reminded of them”, the court agreed that she should be compensated to the maximum for the loss of amenities of life.  

[248]        In her evidence, Ms. Cojocaru described the humiliation Eric feels in trying to be independent with his toileting.  He was only out of diapers at around three years and three months.  Now he is able to go to the toilet alone but he does not have good balance so tends to make a mess.  He will pull up his pants on his own but they will often have to be adjusted. 

[249]        Eric’s kindergarten teacher, Kate Wejr, described how she “kept an eye on him” when he went to the toilet and how she would often help him to re-arrange his clothing when he returned.  His special needs support worker, Nova Erickson, described the difficulties Eric has with eating and how she will try to delay cleaning him up until after the other children have left the lunch room, so as not to humiliate him in front of them. 

[250]        Mr. Hilliard, the physiotherapist assigned to Eric through his Independent Education Program spoke of his experiences of watching Eric eat, how long it took Eric to eat and the mess he made.  Even with what should be easy food for a child to handle, a slice of pizza, Eric cannot eat without making a mess of himself. 

[251]        A DVD of Eric undertaking a number of activities was shown to the court.  Eric’s frustration became evident as he tried and failed to put on his socks, and then later his shoes.  This small task requires enormous energy and concentration.  The evidence suggests that it often results in failure and exhaustion.  

[252]        The evidence from Eric’s mother and from his teachers suggests Eric strives to be independent, wants to do things for himself and wants to be included in the games and activities of his classmates.  His special needs support worker Ms. Erickson said Eric was a “sweet-natured and likeable child”, but that Eric’s lack of impulse control and inappropriate behaviour annoys the other children.  She warned that things would get worse as the group gets older, for, as she put it, “children become less and less forgiving”. 

[253]        Dr. Hahn, Dr. Kaushansky, Dr. Hill and Dr. Joschko all agree that as he grows older, the gap between Eric and his peers will widen.  In his evidence, Dr. Hahn emphasized the lack of “learning challenges” that are contained within the kindergarten curriculum and spoke of the much greater challenges that Eric will face as numbers and letters become a more significant component of his school work. 

[254]        After two years of patient and dedicated coaching, Eric still cannot write his own name or even remember the four letters that are in it.  He cannot keep up with his peers, he cannot play with them, he cannot effectively communicate with them, and he will never be like them.  Eric will always be the child on the edge of the playground, the teenager who is shunned, or the adult who is ignored. 

[255]        Eric’s brain injury is devastating.  In many ways, the intellectual functioning he has retained (according to Dr. Kaushansky and Dr. Joschko) renders his pain and suffering all the more acute.  Unlike those who have little or no cognitive awareness of their predicament, Eric is only too aware, even at six, of his differences.  He will experience the humiliation of rejection and the misery of his situation every day of his life and in every aspect of his life. 

[256]        Eric has sustained a severe and permanent injury.  The British Columbia Court of Appeal has made it clear that the upper limit of non-pecuniary damages is appropriate in any case in which the plaintiff has sustained “devastating” injuries.  There is no basis for drawing fine distinctions between different types of severe injuries. 

[257]        I have concluded that the plaintiff Eric Cojocaru should be awarded non-pecuniary damages in the amount of $321,000, which is the current value of the upper limit, adjusted for inflation. 

Monica Cojocaru

[258]        Ms. Cojocaru has also undergone significant pain and suffering as a result of the defendants’ tortious conduct.  She too is entitled to non-pecuniary damages. 

[259]        In Cherry (Guardian ad litem of) v. Borsman (1992), 70 B.C.L.R. (2d) 273, 94 D.L.R. (4th) 187 (C.A.), an obstetrician was sued for conduct that led to a failed abortion and ultimately the birth of a severely handicapped child.  At trial, the adult plaintiff, the mother, was awarded $75,000 for non-pecuniary damages.  This award was upheld by the Court of Appeal. 

[260]        Ms. Cojocaru had to suffer throughout a painful process and the aftermath of same which she should never had to have gone through.  She suffered considerably. 

[261]        In the circumstances, Ms. Cojocaru is entitled to non-pecuniary damages of $40,000. 

PECUNIARY DAMAGES

Future Income Loss

[262]        The plaintiff claims damages for future loss of earning capacity. 

[263]        As Eric was injured at birth, the court cannot assess his loss of income from an evaluation of past or present vocational or educational patterns or achievements.  In the circumstances, it is appropriate to consider the levels of education of Eric’s parents and the “achievement orientation” in the household:  see Cherry.  

[264]        In Cherry at para. 153, the Court of Appeal approved the approach taken by the trial judge with respect to the factors to be taken into account when assessing future income loss, referring to the evidence that had been before that court, in the form of an expert report from the neuropsychologist:  

When determining the educational ability and potential of a child, one must assess a number of indices in and around the child’s environment: 

1.         Parental education; level of attainment and presence of any educational problems within the parents’ history; 

2.         Present vocational status of parents and stability of work habits; 

3.         Achievement orientation in the household; 

4.         Sibling (if any) achievement. 

Given the parental background, it is my opinion that Beth could well have finished an academic program in high school.  Additionally, I would suggest that she would have been a candidate for a two-year post-secondary technical program at a community college.  Additionally, there is the possibility that Beth could have gone on to complete a four-year university course. 

[265]        The law respecting the assessment of damages for loss of future earning capacity was also referred to in the trial judge’s reasons in Spehar at para. 42: 

The law which is relevant to this assessment is succinctly summarized in Gray v. MackIin, [2000] O.J. No. 4603 (Sup.Ct.) at paras. 183-185: 

In the trilogy of cases, Andrews v. Grand and Toy (Alberta) Ltd., [1978] 2 S.C.R. 229; Thornton v. School District 57, [1978] 2 S.C.R. 267; and Teno v. Arnold, [1978] 2 S.C.R. 287, (and as refined and elaborated in Lindal v. Lindal, [1981] 2 S.C.R. 629), the general principles governing the assessment of damages are set forth. 

In relation to loss of future earning capacity, the trilogy of cases directs a Court to apply the principle that an injured person is to be restored to the position he/she would have been in, had the accident not occurred, insofar as this can be done with money.  The Supreme Court of Canada has also enunciated the principle, that in determining an award for lost future earning capacity, where the evidence permits, the Court should compare what the Plaintiff would have earned had he/she not been injured with what he/she will earn in his/her injured state.  Further, where evidence is not available, then statistics as to average earnings, adjusted as necessary for the individual situation of the Plaintiff, may serve as the basis of the award for lost earning capacity. 

[266]        The relevant principles are also summarized in Reilly v. Lynn, 2003 BCCA 49, 10 B.C.L.R. (4th) 16 at paras. 100-101:  

An award for loss of earning capacity presents particular difficulties.  As Dickson J. (as he then was) said, in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251: 

We must now gaze more deeply into the crystal ball.  What sort of a career would the accident victim have had?  What were his prospects and potential prior to the accident?  It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made:  The Queen v. Jennings, [1965] 2 O.R. 285.  A capital asset has been lost: what was its value? 

101.     The relevant principles may be briefly summarized.  The standard of proof in relation to future events is simple probability, not the balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood:  Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation for real and substantial possibilities of loss, which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).  The valuation of the loss of earning capacity may involve a comparison of what the plaintiff would probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.).  However, that is not the end of the inquiry; the overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 11 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.).  Moreover, the task of the Court is to assess the losses, not to calculate them mathematically:  Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally, since the course of future events is unknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong: Milina v. Bartsch, supra, at 79.  In adjusting for contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253, are a useful guide: 

First, in many respects, these contingencies implicitly are already contained in an assessment of the projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work, vicissitudes and all.  Second, not all contingencies are adverse ... Finally, in modern society there are many public and private schemes which cushion the individual against adverse contingencies.  Clearly, the percentage deduction which is proper will depend on the facts of the individual case, particularly the nature of the plaintiff’s occupation, but generally it will be small… 

[267]        In Brito (Guardian ad litem of) v. Woolley, a case that also dealt with a plaintiff who had been injured at birth, the court confirmed, at para. 624 that awards for loss of earning capacity should be based on substantial possibilities and not on probabilities, referring to the decisions of the British Columbia Court of Appeal in Anderson (Committee of) v. James (1992), 63 B.C.L.R. (2d) 176, 87 D.L.R. (4th) 419 (C.A.), and Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133, [1990] 5 W.W.R. 365 (C.A.). 

[268]        Eric’s parents were both university educated in Romania.  They left Romania in 2000 to pursue a better life for themselves and their children and, specifically, to ensure their children would have every opportunity life in Canada could offer.  Since Eric’s birth, Ms. Cojocaru has devoted her life to caring for her disabled son and in trying to procure the best rehabilitation therapies available to him at the expense of pursuing a career and meaningful employment for herself. 

[269]        Eric’s maternal uncle, Calen Sarban and his wife, Alma Sarban, also gave evidence at the trial.  They are Eric’s only family living in Canada aside from his mother and brother.  Both Mr. and Mrs. Sarban are university educated.  Both work in their chosen professions. 

[270]        I agree with counsel for that plaintiff that the evidence suggests Eric’s inability to become competitively employed is directly linked to the following factors:

(a)               his permanent speech and language deficits; 

(b)               his permanent gross and fine motor impairments; 

(c)               his permanent and likely progressive stamina issues; 

(d)               his impaired memory; and 

(e)               his inability to apply and likely maintain his currently stated IQ. 

[271]        Any one of these deficits alone would severely limit Eric’s prospects from obtaining gainful employment.  Together, they virtually assure his inability to work. 

[272]        The only vocational expert to testify at trial was Mr. Derek Nordin of the Vocational Consulting Group, on behalf of the plaintiff.  Mr. Nordin clearly explained why there will be no jobs available to an individual such as Eric.  He looked primarily at physical factors, as well as anticipated levels of education in conducting his analysis.  

[273]        Mr. Nordin utilized a computer assisted vocational assessment program to identify the myriad of jobs available to healthy and well educated Canadians.  Mr. Nordin applied a series of assumptions regarding Eric’s anticipated level of disability and the extent to which each one of those assumptions would reduce the overall number of job titles available to Eric based on the successive application of the assumptions.  The following chart summarizes his findings: 

Skill Set/Disability

Job Availability

University Educated

Approx 3,000

High School plus Job Training Only

Approx 1,000

Motor Coordination (below average)

Approx 242

No Medium or Heavy Strength (fatigue issue)

Approx 86

Balance Issues

Approx 81

Working with Hazardous Materials

Approx 79

Low Average Verbal Aptitude (dysarthria)

Approx 39

Below Average Finger Dexterity

Approx 0

 

 

[274]        It is important to note that the foregoing analysis did not even consider an individual’s hand/eye coordination, and did not take into account any cognitive dysfunction.  Nor did the analysis take into account any psychosocial issues such as low self-esteem, or lack of confidence.  Mr. Nordin states that to the extent such areas are problematic for Eric, they would further negatively impact his opportunities for employment.  Based on Mr. Nordin’s analysis, Eric will not be competitively employable. 

[275]        Darren Benning of PETA Consultants Ltd. has provided statistical evidence to assist in determining Eric’s likely potential educational attainment level in the absence of his disabilities.  

[276]        The defendants did not require Mr. Benning to attend trial for the purposes of cross-examination.  Mr. Benning states on page 2 of his report that: 

The data (from a 1991 Statistics Canada publication) suggests that the majority of children attained at least the same level of education as their parents and most acquired more education then their parents. 

The study relied upon by Mr. Benning suggested that between 65% and 89% of children attained at least the same level of education as their parents and in most instances more education. 

[277]        Mr. Benning cites a more recent study (Knighton and Mirza (2002), Post-secondary Participation: The Effects of Parent’s Education and Household Income) which suggests that children are influenced by the level of education of their parents with respect to the level of attainment they achieve in post-secondary studies.  As of 1998, Canadians aged 18 to 22 pursued post-secondary education approximately 20% more if at least one parent in the family had post-secondary education.  Specifically, where at least one parent had post-secondary education, the propensity of their children to participate in post-secondary studies was in the 76% to 78% range.  Even in the lowest income quartile the rate was still 68%. 

[278]        To ensure that the statistics Mr. Benning was referring to were not skewed by the fact that Eric is the child of immigrant parents, he was asked to consider whether there was statistical support or information which would assist the court in determining whether or not the foregoing statistics accurately reflected Eric’s situation. 

[279]        The first such study (Intergenerational Earnings Mobility Among the Children of Canadian Immigrants) suggested outcomes of second generation Canadians are at least no worse and in many ways better than those whose parents were born in Canada.  Mr. Benning states on page 3 of his report that “second generation Canadians are less likely to lack high school credentials and are more likely to have a university degree” and further that their incidence of reliance on government transfer payments and rates of unemployment are no different then first generation Canadians and, in fact, their average earnings are greater. 

[280]        Additionally, Mr. Benning refers to a 2001 paper by Christopher Worswick (School Performance of the Children of Immigrants in Canada 1994-1995) which suggests that children of immigrants whose first language is neither English nor French perform at school equally to or greater than children of Canadian born parents. 

[281]        Based upon Mr. Benning’s research; Ms. Cojocaru and Marcel Cojocaru’s level of educational attainment (ie. they both have Romanian university degrees); their stated goal with respect to coming to Canada which was to make a better life for themselves and their children; and their stated expectations of their children namely, to become well-educated, to go on to university and to get good jobs, the plaintiffs argue Eric’s future loss of income should be based upon the likelihood that he would have obtained either a masters degree or professional degree. The present value of Eric’s income loss ranges from a low of $1,028,697 to a high of $1,512,165. 

[282]        The plaintiff argues that Eric would have followed in his parent’s footsteps or exceeded same and obtained a professional degree.  Accordingly, his loss of future income totals, it is argued, should be $1,512,165. 

[283]        The defendants, on the other hand, argue that given the educational attainment and work history of Monica and Marcel Cojocaru, it is reasonable to assume for the purpose of assessing a claim for loss of income earning potential, that Eric had the potential to complete some post-secondary education.  The defendants argue that the university education of Monica and Marcel Cojocaru is more applicable on Canadian comparison to a trade certification.  At most, they suggest that Eric would have received a first university degree.  They rely on the evidence before the court in the report of Mr. Hildebrand that only 5% of British Columbian males, aged 39-49 have obtained Master or doctorate degrees and only 1% of males aged 39-49 have professional degrees.  Their expert, Mr. Hildebrand, suggests that even if Eric’s chances of obtaining a higher education were significantly higher than average, the expected education levels still fall short of a bachelor’s degree.  Mr. Hildebrand points out that the educational attainment of his parents, education at a technical institute and not a university, suggests that it is more likely that Eric would have pursued post-secondary studies, but that the circumstances do not warrant the extremely remote prospect of completion of a masters or professional degree as a matter of probability. 

[284]        In his report of August 24, 2007, Mr. Hildebrand calculated Eric’s loss of future income.  This report suggests that if Eric’s future income earning capacity is that of a British Columbian male with a complete high school education but with a relative handicap, he would suffer an income loss in the range of 20% of the income earned by his peers.  If, absent the incident, he would have completed a university degree, then Eric’s income loss would be assessed at $365,195.  The defence also raises the issue of residual earning capacity. 

[285]        Based on the evidence before me, there is virtually no chance in my view that Eric Cojocaru would be competitively employable as an adult.  His physical limitations and his struggle to even do basic age appropriate tasks at this stage make it so highly unlikely that he would be competitively employed to make it a completely false contingency.  Although there is some suggestion in the evidence that Eric would be able to complete high school, this would no doubt be on a modified program of some sort and, even with a high school certification, that does not guarantee employment.  There are significant and far reaching physical limitations which Eric suffers from on a daily basis.  There is, based on the evidence, no prospect of substantial—if any—improvement in these limitations.  To suggest that Eric would be employed in anything other than a structured and funded work program with modest or nominal remuneration would be, in my view, out of the realm of possibilities and into the realm of fantasy. 

[286]        In regards to Eric’s future prospects, I preferred the evidence of Dr. Kaushansky over the seemingly highly optimistic opinion of Dr. Joschko.  Both these doctors are neuropsychologists.  Both are qualified as an expert in their field.  Both assessed Eric.  Both found him to have had at least average intelligence, but that he scored very poorly in those tests designed to assess memory. 

[287]        Dr. Kaushansky did not share Dr. Joschko’s optimism regarding Eric’s future, opining that notwithstanding his average intelligence, Eric is unlikely to graduate high school with academic skills commensurate with his peers. 

[288]        According to Dr. Kaushansky:  

This youngster has average intelligence but very specific difficulties, particularly memory.  The intelligence quotient is divided into verbal and non-verbal and both were average.  However, he has poor memory.  For example, he was given a story and asked what he remembered and he was unable to recall details.  Academically, he has just finished kindergarten but is 2 years behind his peer group in reading skills.  He is at an age 4 level. 

I did not give any motor testing because of his cerebral palsy.  With respect to adaptive functioning, his skills are around the age 4 level.  That refers to his ability to use the phone, deliver a message, etc.  I also performed tests for executive functioning.  These are reasoning, planning, etc., and his scores were quite low.  That concluded the testing.  This is what we found regarding ‘the now’. 

I think Eric will graduate high school but his academic skills will not be commensurate with his peers.  He will be below Grade 8 when he graduates and that’s being generous. 

When he graduates he will have specific difficulties with memory, speed of information processing, and attentional skills. 

[289]        Based upon Eric’s physical deficits alone, as described above, and which the experts appear to agree are permanent and will not improve, Eric Cojocaru is precluded from competitive employment.  Add to these Eric’s cognitive issues, and his employment opportunities are nil.  According to Dr. Hahn, at page 25 of his report: 

The sad reality is that, by virtue of his cerebral palsy, and its diverse impairments and disabilities, his vocational future will, as mentioned, be very narrow.  Realistically, it will take a very motivated Eric and a very thorough vocational assessment and support for him, as a young adult, to become vocationally engaged, even part time.  Indeed, the chance of Eric to be competitively employable in society, given cognitive, language and particularly dexterity impairments is, indeed, statistically very marginal. 

[290]        Dr. Kaushansky comes to a similar conclusion, “I do not envisage Eric working competitively within the community but within more sheltered (and safer) environments”. 

[291]        Ms. Duke, in her report dated July 20, 2007, states at page 7, “in adulthood, I believe that Eric’s speech and language difficulties alone will preclude him from competitive employability”. 

[292]        Dr. Hahn also views Eric’s cognitive functioning in memory as being poor and also stated how his information processing capabilities appeared to be slow and inefficient.  

[293]        Even Dr. Hill, the paediatric neurologist called on behalf of the defendants, stated that Eric’s cognitive abilities were impaired. 

[294]        The “sad reality” as envisaged by Dr. Hahn, Dr. Kaushansky, and Ms. Duke is clearly borne out in the analysis of Mr. Nordin. 

[295]        Eric is not competitively employable and does not have any residual employment capabilities. 

[296]        I conclude that the plaintiff’s position as to what Eric Cojocaru would have achieved absent an injury is an optimistic projection.  In my view, Eric’s future loss of income should be based on the likelihood of him obtaining some university education and perhaps completing a university degree.  I would assess that loss of future income at $850,000. 

Loss of Interdependent Relationship

[297]        An important counterpart to diminished earning capacity is the loss of financial and other benefits that derive from an interdependent relationship.  The loss of a permanent interdependent relationship was explained in Klar et al., eds., Remedies in Tort, Looseleaf (Vancouver: Carswell, 2006) vol. 4, 27:66.1 as follows: 

Loss of opportunity to earn family income has been recognized as a component of future pecuniary loss where an accident has caused the loss of an opportunity to form a permanent interdependent relationship that could be expected to produce financial benefits in the form of shared family income.  This loss has both positive and negative consequences and is also closely associated with a person’s employment status.  It has been held that the court should make an effort to assess the net pecuniary effect of the interconnected financial consequences.  Assessment will usually depend on both statistical evidence and particular assessment of the individual.  Lost opportunity to form an interdependent relationship has been said to include three aspects: (1) loss of the benefit of increased income; (2) loss of the benefit of shared expenses; and (3) loss of the benefit of shared homemaking.  Awards are generally reserved for catastrophic and more serious injury, and claims must be supported by expert as well as lay evidence. 

[298]        The leading case in British Columbia respecting loss of a permanent interdependent relationship is Reekie v. Messervey (1989), 36 B.C.L.R. (2d) 316, 590 D.L.R. (4th) 481 (C.A.).  Lambert J.A. affirmed the trial judge’s award of $50,000 for the loss of the opportunity to marry.  He recognized the loss of on interdependent relationship as a component of future pecuniary losses and stated at 336: 

In the end [the trial judge] awarded $250,000 for the totality of future losses on the income side of the equation.  He broke that figure down into $200,000 for loss of earning capacity and $50,000 for loss of opportunity to form a permanent interdependency. 

[299]        Lambert J.A. set out who is generally entitled to an award for loss of a permanent interdependent relationship at 330:  

This aspect of the damage award was called ‘loss of opportunity to marry’ by counsel and by the trial judge.  But marriage itself is not the significant point.  The significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income.  Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place.  Permanent financial interdependency, not marriage, is the gist of the claim.  For the sake of simplicity and consistency, I will now usually call this head of loss:  ‘lost opportunity of family income’. 

[300]        The Reekie decision was followed by Finch J.A. (as he then was) in Anderson v. Miner (1999), 57 B.C.L.R. (3d) 118, 117 B.C.A.C. 39 (C.A.).  Here, Finch J.A. considered a claim for loss of the opportunity to form an economically advantageous interdependent relationship.  The plaintiff suffered from severe burns to her face and neck when she was on a school outing at the age of eight.  The court found at para. 32:  

…Though physical appearance is never the measure of a person, we unfortunately do live in a society which puts a premium on physical appearance.  The effect that disfigurement has on one’s ability to achieve an economically advantageous permanent interdependent relationship is regrettable but nonetheless real due to the social mores governing the process of finding a mate.  A damage award in this respect compensates the plaintiff for this diminished ability to operate within the sphere of social values that render physical appearance an asset of sorts.  Because of the pressure such a premium puts on women the plaintiff has emotional scars which will also make it more difficult for her to meet new people, and which will inhibit her socially, and deter her from risking failure in new ventures.  Those factors all support the plaintiff’s claim that she is impaired in her ability to meet and form an economically advantageous permanent interdependent relationship with another person. 

[301]        The courts have also considered it proper to assume that a plaintiff would likely form a relationship with a person of similar education.  In Wassell (Guardian ad litem of) v. Pile, [1994] B.C.J. No. 1837 (S.C.), the court considered the fact that the plaintiff’s injuries would likely prevent her from marrying someone who had an educational status equivalent to what she would have had if not for the injury.  Discussing the issue at paras. 165-178, the court’s logic went as follows:  if the plaintiff had not been injured, she would have gone to university.  Because statistically “like marries like”, if she went to university, she would have married a university educated man.  University educated men make more than non-university educated men.  Therefore, she should be awarded damages to compensate for loss of opportunity to many a university educated man. 

[302]        The defendants dispute any claim for loss of interdependent relationship as being too uncertain.  They note that Mr. Hildebrand indicates in his report that an interdependent relationship is not necessarily financially advantageous.  The potential advantages are as a result of a shared relationship with another income earner without additional consumption.  This is not necessarily the eventual circumstances. 

[303]        In my view, there is some significant probability of cost sharing and financial advantages from an interdependent relationship.  The evidence strongly suggests that as a result of his injuries, this opportunity is in all likelihood completely lost to Eric.  Taking into account some contingency for the existence of an interindependent relationship and the further contingency of their not necessarily being a financial advantage from an interdependent relationship, I would assess this loss at $25,000. 

Future Cost of Care

The Law

[304]        In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205, the Supreme Court of Canada reaffirmed the restitutio in integrum theme as it relates to future care.  That was also a case dealing with an infant plaintiff who had been injured at birth.  At paras. 21-22, Madam Justice McLachlin stated:

21.       Damages for cost of future care are a matter or prediction.  No one knows the future.  Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and to fix the damages for future care as best they can.  In doing so, courts rely on the evidence as to what care is likely to be in the injured person’s best interest.  Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates. 

22.       The resulting award may be said to reflect the reasonable or normal expectations of what the injured person will require.  J. Stapleton, ‘The Normal Expectancies Measure In Tort Damages’ (1997), 113 L.Q.R. 257, thus suggests that the tort measure of compensatory damages may be described as the ‘normal expectancies measure’, a term which ‘more clearly describes the aim of awards of compensatory damages In tort: namely, to reposition the plaintiff to the destination he would normally have reached…had It not been for the tort’.  The measure is objective, based on the evidence.  This method produces a result fair to both the claimant and the defendant.  The claimant receives damages for future losses, as best they can be ascertained. 

[305]        A starting point for defining the principles to be relied upon when assessing future cost of care is the decision of the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 241, 83 D.L.R. (3d) 452 [cited to S.C.R.], where Dickson J. stated:  

In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in if he had not sustained the injury.  Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed.  To this extent, restitutio in integrum is not possible.  Money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim. 

[306]        The law does not permit the defence to argue that Eric Cojocaru should “get by” with less than “full compensation”.  Nor does the law permit the defence to pass off the responsibility of the defendants to provide appropriate future care by suggesting that Eric Cojocaru can and should rely on his mother and his brother to take care of him.  Furthermore, Eric is not required to “make do” with government subsidized programs, be it within the school system or charitable organizations, such as the Variety Club, to provide him with the additional support and equipment he needs.  While this cheaper approach to future care may benefit the defendants, it is not what the law provides for.  In the words of Dickson J. at 246 in Andrews: “justice requires something better”.  Dickson J. was referring to “full compensation” for future cost of care. 

[307]        Full compensation for future care is also not limited by considerations of the cost to the defendant or the social burden of large awards.  Dickson J. was clear in Andrews at 246, that the standard to be applied is not just “provision” but “compensation”:  

... The standard of care expected in our society in physical injury cases is an elusive concept.  What a legislature sees fit to provide in the cases of veterans and in the cases of injured workers and the elderly is only of marginal assistance.  The standard to be applied to Andrews is not merely ‘provision’, but ‘compensation’, i.e., what is the proper compensation for a person who would have been able to care for himself and live in a home environment if he had not been injured?  The answer must surely be home care.  If there were severe mental impairment, or the case of an immobile quadriplegic, the results might well be different; but where the victim is mobile and still in full control of his mental facilities, as Andrews is, it cannot be said that institutionalization in an auxiliary hospital represents proper compensation for his loss.  Justice requires something better. 

[308]        In the recent case of Aberdeen v. Langley (Township), 2007 BCSC 993, rev’d in part 2008 BCCA 420, 84 B.C.L.R. (4th) 220, I consider the meaning of “full compensation” at para. 85: 

While the notion of making full compensation for pecuniary losses is clearly the goal, neither the English cases nor Andrews fully resolve the issue of what standard of future care is required to provide ‘full’ compensation.  Additionally, Andrews retained the requirement that compensation must be fair and reasonable, and stated that fairness to the defendant was to be achieved by ensuring claims were ‘legitimate and justifiable’. 

86.       The issue was subsequently clarified by McLachlin J.’s often cited judgment in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).  There, she clarified that (1) there must be medical justification for claims for the cost of future care, and (2) the claims must be reasonable.  This is the test which has been repeatedly applied by subsequent courts in determining which expenses to allow for future care.  Thus, although judges are to make ‘full’ compensation for the cost of future care, in the sense of awarding what the medical evidence indicates is the appropriate standard of care, such claims must still be reasonable and justifiable. 

[309]        After a review of the English authorities, I came to the following conclusion: 

111.     In sum, while the English courts may have disagreed on how damages should be calculated and to what degree they should be limited out of a concern for fairness to the defendant, none of the personal injury cases appear to take issue with the concept of providing to the plaintiff the entire anticipated cost of future care, taking into account appropriate contingencies.  Indeed, in some of these cases, the cost of a home attendant to care for the plaintiff or the cost of care in a private institution were awarded, without apparent discussion of whether a cheaper alternative should be used. 

112.     The trial judge in Andrews reviewed the old English authorities in reaching the same conclusion, affirmed by the Supreme Court of Canada, that full compensation should be made for pecuniary loss, while fair and reasonable compensation should be awarded for non-pecuniary loss.  Andrews clearly stated that full compensation is to be made for pecuniary losses without regard to the financial position of the defendants, which in that case meant home care for the plaintiff despite its very high cost compared with institutionalization.  In contrast, awards for non-pecuniary losses may be limited by broader social concerns. 

... 

117.     Thus, in Andrews, the notion of full compensation in relation to damages for the cost of future care meant the cost of home care for the plaintiff, rather than institutionalization.  What these judgments seem to indicate is that claims must be reasonable, but compensation is full in the sense that the plaintiff should not make do with less than what is medically justified to provide him with optimal care in order to save the defendant money, which was the route taken by the Alberta Court of Appeal. 

[310]        I then dealt with the apparent contradiction between the notions of full compensation as described in Andrews and the argument, based on Milina, that a plaintiff is only entitled to future care costs that are medically justifiable in the sense that items which the plaintiff is unlikely to use or are experimental should not be provided for.  I did not consider the judgment in Andrews to provide the “complete answer to the problem” after noting that Dickson J., in Andrews did not address how a court should choose between acceptable alternatives to what could be considered “full compensation”.  I went on to conclude: 

120.     Thus, I think the solution is to consider ‘full’ compensation espoused in Andrews in the context of the more pragmatic and widely-followed test set out in Milina, namely that there should be medical justification for a cost of future care expense, and the expense must be reasonable.  In this sense, the inquiry is more directed to the fact-based determination of whether each individual item is medically justified, rather than approaching the question from a purely functional analysis of whether a particular item will make the plaintiff whole again.  The difference is in many respects semantic, but the former question maintains the focus on the pecuniary loss aspect of the cost of future care, and helps to prevent the Court from extending the award to fulfill the non-pecuniary goal of providing solace for what has been lost.  Even in Andrews, Dickson, J. recognized that restitutio in integrum was not possible (at para. 25).  If the plaintiff fails to demonstrate that a particular future care item is medically justified, the plaintiff in essence has failed to prove his damages, and therefore cannot receive compensation on that ground.  That said, the analysis of what is ‘medically justified’ is not as narrow as what is ‘medically necessary’, and all of the parties agree with this proposition. 

[311]        In Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.), the future cost of care assessments had been provided by a rehabilitation expert with a background in nursing.  The defence argued that the Milina test requires that a medical doctor provide the evidence on which the assessment of damages for future care is based.  Levine J. rejected the defence argument, stating:  

181.     My reading of the test in Milina v. Bartsch in the context in which it is set out is that the cost of future care that may be awarded as damages must relate to the plaintiff’s medical needs and not simply improve the plaintiff’s enjoyment of life.  McLachlin J. accepted the defendants’ position in that case, which she summarized at page 83 of her reasons, as follows: 

To the extent that money can be used to sustain or improve the mental or physical health of the plaintiff, it should be awarded under the head of cost of future care.  But insofar as it serves only as solace by providing substitute pleasures, it falls under the head of non-pecuniary loss, not cost of future care, the defendants submit. 

The distinction is important, because damages for non-pecuniary loss, unlike damages for cost of future care, are limited by the so-called ‘$100,000 limit’. 

182.     The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor.  In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided. 

[312]        Levine J. accepted that the rehabilitation consultant possessed the experience, skill and training to provide expert evidence concerning the specific care required to sustain or improve the mental or physical health of the plaintiff. 

[313]        The Jacobsen case was followed in Frers v. DeMoulin, 2002 BCSC 408, 1 B.C.L.R. (4th) 131 at para. 188, where Smith J. ruled that it was not necessary to have the evidence of the future care requirements confirmed by a medical doctor.  

[314]        In this case, the court is not faced with a choice between institutionalization and home care.  However, the court must decide whether Eric should receive full compensation in the sense that all future care costs which the court deems to be medically justified will be provided for, or whether Eric should be forced to “make do” with government subsidized care and be compensated only for those future care costs which fall outside the realm of “the system”.  That issue was settled in Andrews, and the law is clear that a plaintiff is not required to “make do” with care that is less than that which is supported by the evidence because such an option is cheaper for the defendants.  

[315]        In Strachan (Guardian ad litem of) v. Reynolds, 2004 BCSC 915 at para. 643, Hood J. refused to take government funding into account in assessing the award for future care costs.  

[316]        The issue came before this court again in Fullerton (Guardian ad litem of) v. Delair, 2005 BCSC 204.  In that case, the plaintiff was receiving funding through the “At Home Program” and the defence, relying on the evidence of Ms. Mageau, argued that where benefits are available through public programs, any award for future care costs should be reduced to account for such benefits.  

[317]        The trial court followed Jones (Guardian ad litem of) v. Rostvig, 2003 BCSC 1222, 17 C.C.L.T. (3d) 253, and, relying on the decision in Krangle, made its award on the following basis at para. 275:  “[t]he defendants do not have to pay for services the government makes available to the plaintiffs, as they are not costs that the plaintiff must bear”. 

[318]        The Court of Appeal, 2006 BCCA 339, 55 B.C.L.R. (4th) 252, did not agree:  

26.       The defendants say the plaintiffs incurred no loss because of the benefits of the At Home Program, and they point to the fact that they are still receiving the benefit at the time of appeal. 

27.       The defendants rely, as did the judge, on Krangle to support their position.  The facts were very different in Krangle.  The parents of the plaintiff (who was born with Down’s syndrome) were concerned about their liability under the Family Relations Act, R.S.B.C. 1996, c. 128, to support the child when he reached age 19.  The evidence established that the appropriate placement at age 19 was in a group home for which the welfare scheme would pay.  Chief Justice McLachlin referred to the scheme in this way: 

[27]      The next question was whether the Krangles would incur costs for Mervyn’s adult care in the group home.  At the time of trial, the cost of the group home -- $654 per month -- would have been paid for by the province under its welfare scheme, GAIN.  This would be so even if the parents had the financial means to pay for it.  The province’s policy at the time of trial was to treat adult disabled persons as individuals, and absent assets of over $100,000, or possibly more, pay for the costs of group care through GAIN. 

28.       The At Home Program is not mandated by legislation, unlike the GAIN welfare scheme.  It is discretionary in nature and subject to competing budget allocations.  As such, it is my opinion that it should be for the government, not the court, to decide who gets the benefit.  By denying recovery for costs of the care provided by the At Home Program, the judge effectively created the condition for continued dependence on the program. 

29.       I think it is too glib for the defendants to say that the plaintiffs have suffered no loss.  It ignores the deeper question as to how the tort system should interact with government welfare schemes like the At Home Program.  Which should come first in the analysis: tort assessment or availability of the program?  The solution to this chicken and egg conundrum lies, I think, in appreciating the separate roles of the court and government. 

30.       On one hand, the court determines on negligence principles whether the wrongful acts caused the plaintiff to need the care in question, and, in the ordinary course, the cost of care is quantified and an award follows. 

31.       On the other hand, the government establishes various schemes to relieve the suffering of needy members of society and sets rules for entitlement.  Where, as here, the government designs the scheme for the benefit of those who do not have access to tort compensation, or who, like the plaintiffs, are awaiting the outcome of litigation, the court should respect the rules and make an award for costs in the ordinary way. 

32.       Such an outcome puts the burden of the loss on the wrongdoers and avoids depriving families on the waiting list who have no tort claim. 

33.       In the result, I would set aside the award for cost of future care and refer the matter to the Supreme Court for reassessment in accordance with these reasons. 

Care Analysis

[319]        As already set out in detail, Eric has suffered permanent injuries which will affect all of his interactions with his surroundings for the rest of his life.  According to Eric’s treating paediatrician, Dr. Thiessen, Eric “will always need supervision and it is unlikely that he will be able to live independently.  Further, he will continue to need special help in school and help with activities of daily living including dressing and eating”.  

[320]        Dr. Kaushansky indicates that Eric is a child at “significant risk” who will need to be monitored on an ongoing basis.  Further, Eric will require ongoing support as an adult for the entirety of his life given his physical, psychological/emotional, sexual and financial vulnerabilities.  Further, it is unlikely that Eric will be able to live independently as an adult.  

[321]        Ms. Duke, a speech-language pathologist, is also of the view that Eric is unlikely to live independently given difficulties associated with communicating the details of an emergency quickly and understandably, as well as having difficulty with speech and language such that he might be taken advantage of by others.  

[322]        Dr. Hahn prefaces his comments regarding Eric’s ability to live independently by stating:  “Eric, currently, is still very young and that, to project 15 or more years ahead, is a very real challenge, with respect to projecting his future level of capability to live independently”. 

[323]        Dr. Hahn goes on to state that Eric may be able to live independently but would require a residence with alterations to the kitchen and bathroom and that he would require assistance with community directed activities such as shopping and leisure pursuits and higher order financial transactions and planning.  

[324]        Dr. Thiessen, Dr. Kaushansky, Dr. Hahn and Ms. Duke looked at Eric’s limitations from the perspective of their particular specialities.  These experts gave consideration to specific deficits Eric possessed in coming to their conclusions regarding Eric’s need for ongoing assistance. 

[325]        The care specialists, Moray McLean and Ruby Schuistad, retained on behalf of the plaintiff to determine Eric’s actual care needs now and into the future performed their own assessments of Eric and considered all the deficits Eric possessed when providing their care estimates.  It is easy to fall into the trap of considering each deficit in isolation of the others when trying to determine what Eric’s future holds for him and what needs he will require to fully compensate him for those deficits. 

[326]        Counsel for the defendants questioned the plaintiff’s care experts regarding whether other individuals who had a deficit similar to Eric could live independently in support of the proposition that Eric too could live independently.  Regardless of whether or not other individuals with deficits are exceptions, what they are not are examples of individuals who have multiple deficits which makes caring for oneself and living independently virtually impossible.  

[327]        Eric’s deficits and disabilities are clearly multi-factorial: 

(a)               Eric has permanent gross and fine motor impairments.  These deficits are permanent.  They will not improve. 

(b)               Eric has significant and permanent speech and language deficits.  These deficits are permanent and unlikely to improve. 

(c)               Eric has significant stamina and fatigue issues which will not improve and will likely worsen as the cognitive and physical demands upon Eric increase as he ages.  The more Eric is required to exert himself the more difficult it will be for Eric to take care of his personal tasks of daily living, be it dressing, cooking, shopping, cleaning or any other task that we all simply take for granted as being part of what it takes to get by.  

(d)               Eric lacks the ability to communicate through written word.  

(e)               Eric has extremely poor working memory.  This makes virtually every aspect of one’s ability to think, reason, or exercise judgment more challenging.  Given Eric’s apparent inability to learn even the four letters of his own name, Eric’s ability to learn to read is in serious doubt.  This would make the ability to read or remember warning labels on medication, expiry dates on food or instructions on how to change the filter on one’s furnace difficult to understand and thus put Eric in a dangerous situation.  

(f)                 Eric has poor oral muscle control resulting in an inability to properly swallow food.  This puts Eric at significant risk of choking, gagging, and aspirating.  

(g)               Eric has poor mobility.  Virtually every single expert who has gone to observe Eric in addition to every lay witness who testified at trial has observed Eric fall on at least one and in most cases multiple occasions.  Eric’s falls have been frequent and in some cases severe.  

(h)               Eric exhibits poor impulse control and judgment in terms of inappropriate touching of peers and inappropriate reactions to friendly social interaction.  

(i)                  Eric has begun to become isolated from his peers which will impact Eric’s psychosocial behaviour leading to bouts of depression and behavioural problems.  

(j)                  Eric has difficulties maintaining attention.  

(k)               Eric has some risk for developing seizures.  In the newborn period, Eric suffered from seizures which he appeared to have outgrown.  However, very recently, at the age of six, Eric suffered a significant seizure.  While medical opinion is divided on the relative likelihood of Eric experiencing ongoing epileptic seizures, his underlying brain injury predisposes him to this risk.  

Thus it is based on the culmination of all of Eric’s problems that Eric needs the care set out in the reports of Ms. McLean, Ms. Schulstad and Ms. Duke.  As stated by the developmental paediatric specialist retained on behalf of the defendants, Dr. O’Donnell, it is critical that Eric get as much care as possible now so as to try and minimize to the extent achievable the impact his deficits will have upon him in the future. 

[328]        Due to resource allocation issues, and administrative issues, the evidence clearly establishes that the school system, despite the best efforts of those working within it, is simply not capable of ensuring Eric’s needs are met.  Furthermore, the law as set out above establishes that a severely injured plaintiff need not rely on government or charitable handouts to “make do”.  As Dickson J. stated in Andrews, “justice requires something better”. 

[329]        Even the defendants’ expert, Dr. O’Donnell, when questioned regarding the various notations contained in her file acknowledged that the current education regime in British Columbia simply does not have the resources to take care of those in Eric’s situation.  She stated that the system was “stretched too thin”. 

[330]        With respect to the defendants’ care expert, Ms. Mageau, little, if any weight should be given to her opinions.  I have concluded this after considering the numerous assumptions in her report.  Ms. Mageau assumed: 

(a)               that Eric has “normal cognition”.  She did not even consider Eric’s significant problems with working memory or the likelihood he has serious learning disabilities; 

(b)               that anything Eric requires in school in the form of aids—be they service or equipment related—will be provided by the school system; 

(c)               that Eric will not require any assistance regarding his personal care needs; 

(d)               that Eric’s gross motor function is “good”; 

(e)               that Eric can be understood 75% to 80% of the time; 

(f)                 that Eric’s motor skills will improve; and 

(g)               that Eric would not require any assistance with cooking. 

None of the foregoing assumptions upon which she bases her opinion are correct.  In fact, the evidence presented at trial suggests that they are the opposite to which Ms. Mageau believes them to be. 

[331]        In addition to making faulty assumptions, Ms. Mageau’s testimony was at times lacking of any credibility.  Ms. Mageau was asked whether she thought the $10 per hour rate she states a mature male would demand for assisting Eric with speech language exercises, learning, supervision, and taking out on outings, would be the same rate in six years.  Ms. Mageau responded in the affirmative.  Ms. Mageau went on to state that the $25 per hour rate for a housekeeper that she indicated would be an appropriate rate today would be the same rate applicable in 2081.  This evidence was indicative of the approach Ms. Mageau took throughout her testimony and in her report.  

[332]        In addition to the faulty assumptions and the manner in which she testified, Ms. Mageau made no effort to conduct any follow up with individuals who assisted Eric to find out how he did throughout the balance of his kindergarten year, over the summer, or at the start of his current school year, did not attempt to follow up with Ms. Cojocaru or see Eric.  

[333]        With respect to the issue of follow up and the timing of the various expert assessments in general, the plaintiff’s counsel submits that the assessments not only of Ms. Mageau but also of Dr. Joschko, Dr. Hill and Dr. O’Donnell were all ill timed and performed prematurely when Eric had just finished the first term of his first year in kindergarten.  Very little academic work had been performed as of the date of their assessments.  The teacher with whom they spoke had only worked with Eric for a few weeks.  Eric had not even turned six years old.  The therapists upon whose advice they relied had only worked with Eric for a very brief period of time.  By way of example, Mike Hilliard, the physiotherapist who consults with the school and Eric had spent less than two hours with Eric when Dr. Joschko, Dr. O’Donnell, Dr. Hill and Ms. Mageau assessed Eric.  Furthermore, despite Eric not even reaching his sixth birthday as of the date he was assessed by the defendants’ experts, none of them did any follow up to see how Eric progressed or, as it turns out, did not progress in terms of his ability to learn, remember basic facts, or improve his ability to communicate and interact with his peers. 

[334]        By way of contrast, the experts on behalf of the plaintiff all assessed Eric at the conclusion of his first full year of school, saw Eric on multiple visits and in the case of Moray McLean, Dr. Kaushansky and Wendy Duke, all went back to Eric’s school at the beginning of Grade 1 to observe Eric again and speak with those directly involved in his supervision and care.  The evidentiary foundations upon which the plaintiff’s damages experts base their damages opinions are more sound.  

[335]        With respect to the government subsidized programs, which the defence would seek to have Eric rely on, the evidence clearly establishes that they are over-subscribed and under-resourced, and will simply not be sufficient to provide Eric with the future care that he requires. 

[336]        That the school system will not provide adequately for Eric’s needs is already evident.  A special seat had been requested midway through Eric’s kindergarten year but did not arrive until after Eric began Grade 1.  What did arrive was not what was required.  According to Ms. MacLean, who visited the school and saw the chair, it as a simple wooden chair which had been recycled and which was not designed for Eric’s needs.  Mr. Hilliard agreed that the chair would have to be adjusted before it could be used. 

[337]        Ms. Mageau, on behalf of the defendants, was of the view that Eric would receive all he needed in the way of computer equipment and learning aides from SET-BC, a Ministry of Education funded program which oversees requests for technical equipment for children with special needs.  Ms. MacLean, on the other hand, who sits on the committee of SET-BC, does not agree.  Ms. MacLean described the process involved in submitting the necessary applications as being cumbersome and testified that not all applications are accepted.  If an application is accepted, it would usually take two to three months before an item is provided.  Further, if an item such as a computer were to be approved, it would not be provided with essential accessories, such as a scanner or printer.  Even the “trackball mouse” which has been essential in assisting Eric to utilize a computer was not provided.  In fact, Ms. Cojocaru was asked to send Eric’s trackball mouse from home, to assist him at school. 

[338]        To fully compensate Eric, his future care needs are substantial.  However, the expense associated with the care items matters not.  What does matter is to ensure that Eric’s needs are met and continue to be met throughout his life. 

[339]        The total claim for future cost of care is based on the reports of Ms. Schulstad, Ms. McLean and Ms. Duke.  The present value of the cost of care recommended by Ms. Schulstad, Ms. McLean and Ms. Duke is set out in the report of Mr. Benning dated August 1, 2007 in the sum of $3,806,005.  

[340]        At the time of trial, Eric was a child in Grade 1.  Attempting to predict the cost of Eric’s future care is the most difficult aspect of this case.  The evidence and submissions of the defendants are based on faulty assumptions.  As I noted earlier, these assumptions in the care expert’s report of Ms. Mageau simply are not consistent with Eric’s current level of functioning as I find it to be and as such the cost of future care reports of the defendants are woefully and completely inaccurate.  That being said, the cost of future care report of the plaintiffs give little if any prospect for Eric’s circumstances in relation to his future care improving.  There is some evidence that with time Eric is able to learn certain tasks.  Although I am convinced that Eric will never get over the disabilities which prohibit him from being competitively employed, such that he could earn even modest income to contribute to his expenses, I am convinced that with assistance, particularly at an early age, the long term future prospects for Eric are not as dire, and as such not as costly, as suggested in the cost of future care estimates of the plaintiffs.  Eric has the great good fortune of having a dedicated and driven mother who will be his advocate and, with sufficient resources early on, will help Eric achieve the maximum that he can achieve in life and will help Eric achieve the maximum level of independence that is possible. 

[341]        At this stage, it is virtually impossible to conclude to what extent Eric will achieve skills which will assist him in caring for himself in the future.  However, now is the time for a decision to be made. 

[342]        The cost of care recommended by the plaintiff’s experts is $3,806,005.  Based on my conclusion that with assistance early on, Eric should be able to achieve some level of skill which will assist in his future care, it is in my view appropriate to apply a 30% contingency to this amount and as such, I would assess costs of future care at $2,665,000. 

In Trust Claim

[343]        Since Eric’s birth, Ms. Cojocaru has devoted her life and in essence has given up her own life for that of her son.  She has forgone a career, lost her husband and believes she is losing her eldest son all due to the time she must devote to caring for Eric. 

[344]        As a single mother, the family is almost entirely dependent on Ms. Cojocaru’s income.  Mr. Cojocaru has left the marriage and returned to Romania. 

[345]        The law is clear that damages are to be awarded for voluntary services performed by third parties including family members.  Professor Cooper-Stephenson writes at 181: 

In all cases, proper quantification should reflect the true and reasonable value of the services performed, taking into account the time, quality, and nature of these services. 

[346]        Professor Cooper-Stephenson sets out three alternative methods to assess the valuation of these services at 181-182 of his text: 

(a)               catalogue of services; 

(b)               replacement cost; and 

(c)               foregone income: opportunity cost. 

[347]        In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), this court reviewed the factors to consider in the assessment of an “in trust claim”:  

93        In the circumstances of this case there are advanced on behalf of the plaintiff Mrs. Brennan, “in trust” for Mr. Brennan, substantial claims related to the services rendered by Mr. Brennan for her care, past and prospective.  The claims are in the amounts of $110,272 and $77,438, respectively. 

94        The subject of “in trust” claims has been given considerable attention in recent years, including, particularly, where the services in question have been rendered within the perspective of a husband/wife relationship or by a child or relative of the family.  Here, the relationship is marital and brings into consideration the usual factors of such a relationship. 

95        In my view, it is useful to review briefly the factors which are considered in the assessment of such claims.  They are: 

(a)    where the services replace services necessary for the care of the plaintiff; 

(b)    if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship? 

(c)    quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services.  In this regard, the damages should reflect the wage of a substitute caregiver.  There should not be a discounting or undervaluation of such services because of the nature of the relationship; 

(d)    it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services. 

[348]        In Fullerton, the trial judge also reviewed the law relating to “in trust” claims, at para. 343:  

In Brito (Guardian ad litem of) v. Woolley, [2001] B.C.J. No. 1692, 2001 BCSC 1178, aff’d (2003) 16 B.C.L.R. (4th) 220 (C.A.), Sinclair Prowse J. articulated the principles to be applied in assessing an in-trust claim at para. 392: 

Such a claim is recoverable, provided that the claimed services are outside the normal duties of parents, that these services were needed because of his injuries, and that someone outside of the family would have been required to perform these services had his parents not done them:  Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16 (S.C.); Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.). 

344.     In Bystedt (Guardian ad litem of) v. Bagdan, 2001 BCSC 1735, aff'd (2004), 24 B.C.L.R. (4th) 205 (C.A.), D.M. Smith J. set out the factors to be considered in the assessment of in-trust claims at para. 180: 

(a)        the services provided must replace services necessary for the care of the plaintiff as a result of the plaintiff’s injuries; 

(b)        if the services are rendered by a family member, they must be over and above what would be expected from the family relationship (here, the normal care of an uninjured child); 

(c)        the maximum value of such services is the cost of obtaining the services outside the family; 

(d)        where the opportunity cost to the care giving family member is lower than the cost of obtaining the services independently, the court will award the lower amount; 

(e)        quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services.  In this regard, the damages should reflect the wage of a substitute caregiver.  There should not be a discounting or undervaluation of such services because of the nature of the relationship; and, 

(f)        the family members providing the services need not forego other income and there need not be payment for the services rendered. 

[349]        It is extremely difficult to quantify with mathematical precision all the time Ms. Cojocaru has spent with Eric over the past six years above and beyond what would normally have been expected of her.  In some cases, such as Brito at paras. 396-404, the court estimated the number of extra hours it thought the mother of the injured infant had spent caring for him and applied a market rate for those services, to come up with the award. 

[350]        The evidence at trial established that from the time Eric returned home from the hospital up until the age of three, he barely slept for more than 30 minutes at a time.  It was not until Dr. Thiessen prescribed Melatonin at age three, that Eric’s sleep began to settle down.  Even from age three up to the date of trial, Eric still wakes up two, three and sometimes four times every night.  During the first three years, Ms. Cojocaru was tasked with the burden of staying up with Eric throughout the night.  This lasted three full years.  Ms. Cojocaru was needed every 40 minutes to attend to Eric who was suffering uncontrollable screaming bouts.  All she was able to do to console her son was to cradle him in her arms until he would again fall asleep. 

[351]        This type of care is above and beyond what would be expected from any parent in normal circumstances.  Granted, all parents will go through short phases during the first year of a child’s life to deal with feeding issues, or possible teething issues, but no one would expect to have to care for a child suffering such as Eric did for those first three years. 

[352]        The plaintiffs’ invite the court to make the following assessment of the in trust claim.  Assuming an individual sleeps on average eight hours a night and Ms. Cojocaru had to wake up every 40 minutes, conservatively, she spent four to five hours a night dealing with Eric’s needs during those first three years.  Not unlike the Brito decision, Eric also required extensive extra care during the day.  The plaintiffs argue that a total of six hours was expended caring for Eric during a 24-hour period, which equates to approximately 2,190 hours per year or 6,570 hours over the first three years of Eric’s life.  

[353]        It is significant that Dr. Thiessen notes in his records that Ms. Cojocaru was literally “going crazy” due to the lack of sleep associated with still tending to Eric during the initial three-year period.  This supports to some degree the plaintiffs’ claim in this regard. 

[354]        Additionally, the plaintiffs’ argue that from age three up until age six, Ms. Cojocaru continued to have to tend to Eric each and every night, two to four times per night.  At a half hour per night, this equates to approximately 550 hours for ages three to six.  They argue this is clearly a care level above and beyond what one would normally expect from an average parent. 

[355]        In addition to issues associated with sleeping, the plaintiffs argue Ms. Cojocaru has spent considerable time trying to train Eric to do tasks which other children take for granted.  

[356]        The evidence confirms this.  Ms. Cojocaru spent over a two-year period trying to teach Eric to walk which included hand crafting a vest with handles so as to assist Eric.  Likewise, Ms. Cojocaru testified to spending over two years trying to teach Eric how to write his name.  She described trying to employ games using stickers and stamps.  This kind of intense activity I find is not something a parent would be expected to do with their child. 

[357]        With respect to basic everyday activities, the plaintiffs argue Ms. Cojocaru spent between one hour and one hour and 45 minutes every morning washing, dressing and feeding Eric.  Obviously, the average parent may assist their five or six year old with respect to getting ready for school in the morning, but they do not have to pick out their clothes, actually put the clothes on their children, brush their child’s teeth, cut their child’s food or feed children like babies to ensure that they get a full meal before the start of the day.  Likewise, they do not have to change their child again after he eats because of the mess their child will make while eating.  This is considerable merit on the evidence to this argument. 

[358]        As well the plaintiffs point to evidence which suggests that after school, Ms. Cojocaru again has to go through the ritual of feeding her child by being on guard and attentive, essentially feeding him.  This is not usual for a six year old.  If Eric goes to the bathroom, she will have to wipe him to make sure that he is properly cleaned and ensure his clothes do not become soiled and dirty.  Furthermore, she will again have to undress Eric and dress him in his night clothes.  This they argue is above and beyond what parents are expected to do. 

[359]        The plaintiffs submit that in addition to the extra care provided by Ms. Cojocaru as noted about, one should not overlook all the smaller things that add up and wear on an individual over time.  Such tasks include turning on and off taps which Eric is incapable of doing, cutting his meat and food, constantly being on the lookout to make sure he does not choke when eating, having to apply shampoo and soap to his body, constantly washing his clothes, having to manipulate a DVD or VCR for him or to instruct him regarding same, constantly having to remind him of things the average normal parent would not have to remind a child of and so on.  

[360]        Although it is impossible to mathematically assess the exact number of minutes or hours Ms. Cojocaru spends each day on such mundane tasks and everyday tasks as detailed above, the plaintiffs argue that the time expended would easily amount to approximately three extra hours per day, every day, since Eric turned three years old.  This equates to approximately 3,300 hours. 

[361]        The plaintiffs argue that the cost to replace Ms. Cojocaru’s services would be equivalent to a live-in assistant at the cost of which is $24.75 per hour.  Accordingly, they assume Ms. Cojocaru has spent approximately 10,420 (6570+550+3300) hours since the time Eric returned home from the hospital this equates to a total of $257,895. 

[362]        Counsel for the defendants rely on the decision of Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16, [1992] 3 W.W.R. 638 (S.C.).  There, mother and daughter were seriously injured in a motor vehicle accident and the husband father devoted himself to caring for them.  As a result, his business suffered and he lost his principal client.  He attributed the loss of his client to his decision to care for his wife and daughter during recovery and estimated the cost of his decision to be $400,000.  He claimed that amount from the defendant driver.  The claim was rejected on the basis that there is no authority for awarding the full amount of opportunity costs to a caregiver if the cost exceeds the reasonable value services.  An award was made to the plaintiffs for the reasonable cost of care provided by Mr. Crane, assessed at $7500.  In Crane, the court made it clear that restraint should be exercised in awarding damages under this head of damages as the principle is that normal compassion and care of relatives of the injured is not to be compensated nor is the anticipated cost of raising an uninjured child.  The compensation is to be for extra services provided by the parent of an injured child. 

[363]        Here, the compensation for extra services provided by the parent to the injured child is a significant factor. 

[364]        Ms. Cojocaru’s ability to obtain a meaningful job and the number of potential positions available to her now has been significantly curtailed due to the time she needs to take off to attend to Eric.  She has been considerably less marketable, less flexible and less attractive to potential employers as a result of her time commitments to Eric. 

[365]        Since his birth, Ms. Cojocaru has effectively acted as the “rehabilitation assistant” recommended by Ms. Schuistad.  She has provided care above and beyond that expected of an “ordinary parent”. 

[366]        The plaintiff’s claim is essentially based on the estimated calculation of the extra hours expended by Ms. Cojocaru with Eric over that in which she would expend for a “normal child”.  It is also based on a nanny cost for equivalent live-in services payable at a rate of $24.75/hour.  That is, in my opinion, overly generous.  Considering the contingencies associated with this claim.  I have concluded that proper compensation for Ms. Cojocaru, based on the principles enunciated in Brito, is $144,000, based on 8000 extra hours of care at a rate of $18 per hour. 

QUANTUM

[367]        In summary, the plaintiff’s quantum of damages is as follows: 

Non-Pecuniary Damages (Eric)

$

321,000

Non-Pecuniary Damages (Ms. Cojocaru)

$

40,000

Income Loss/Loss of Earning Capacity

$

850,000

Loss of Interdependent Relationship

$

25,000

Future Care Costs

$

2,665,000

“In Trust” Claim

$

   144,000

TOTAL

$

4,045,000

 

 

 

[368]        There will no doubt be issues related to tax gross up and costs.  If counsel are unable to settle these issues, they can arrange to be back in front of me in this regard by making the appropriate arrangements through Trial Division.  The same holds true if there are other issues not dealt with in these reasons for which counsel seek additional directions. 

“The Honourable Mr. Justice Groves”