2005 BCSC 204 Fullerton (Guardian ad litem of) v. Delair et al

Before: The Honourable Mr. Justice Goepel

Reasons for Judgment

Counsel for the Plaintiffs:	N.H. Smith, Q.C. L.K. Wong
Counsel for Dr. Leonard Delair:	C.E. Hinkson, Q.C. S.L. Ion
Counsel for Langley Memorial Hospital:	C.L. Woods L. Wood
Date and Place of Trial:	June 28-30, July 2, 5-9 and 12-16, August 24-26, 2004
	Vancouver, B.C.
Written Submissions received from:
Counsel for the Plaintiffs:	November 5 and 26, 2004
Counsel for Dr. L. Delair:	November 15, 2004
Counsel for Langley Memorial Hospital:	November 19, 2004

TABLE OF CONTENTS

Paragraph
Number

INTRODUCTION................................................................................................................... [1]

LIABILITY ................................................................................................................... [5]

A. Pre-Admission.......................................................................................................... [5]

B. Admission................................................................................................................ [8]

C. Hospital Records..................................................................................................... [14]

D. The Foetal Monitor Strips......................................................................................... [16]

E. Evidence of Participants........................................................................................... [22]

1. Nurse Charlton............................................................................................ [22]

2. Nurse Straathof........................................................................................... [51]

3. Dr. Delair ................................................................................................... [66]

4. Mrs. Lori Fullerton....................................................................................... [90]

5. Mr. David Fullerton....................................................................................... [98]

F. Evidence of Experts............................................................................................... [107]

1. Dr. Bradley Fritz........................................................................................ [107]

2. Dr. Gerald Doersam................................................................................... [114]

3. Nurse Beverley Buchinski........................................................................... [123]

4. Dr. Duncan Farquharson............................................................................. [125]

5. Dr. Douglas McTaggart .............................................................................. [131]

6. Dr. Stephen Hudson................................................................................... [138]

7. Nurse Caroline Porter................................................................................. [144]

8. Dr. Glen Ward........................................................................................... [153]

9. Dr. John E. Van Aerde............................................................................... [156]

G. Position of the Parties............................................................................................ [159]

1. Position of the Plaintiff................................................................................ [159]

2. Position of Dr. Delair.................................................................................. [164]

3. Position of the Hospital.............................................................................. [168]

H. Discussion ........................................................................................................... [172]

1. The Law.................................................................................................... [172]

2. Findings on Disputed Evidence................................................................... [178]

3. Liability of the Hospital............................................................................... [191]

4. Liability of Dr. Delair .................................................................................. [203]

5. Apportionment of Fault............................................................................... [212]

DAMAGES ................................................................................................................ [215]

A. Overview............................................................................................................... [215]

B. Life Expectancy..................................................................................................... [221]

C. Non-Pecuniary Damages........................................................................................ [245]

D. Loss of Future Earning Capacity............................................................................. [251]

E. Cost of Future Care................................................................................................ [261]

1. Overview................................................................................................... [261]

2. Government Programs................................................................................ [267]

3. Attendant Care.......................................................................................... [276]

4. Housing.................................................................................................... [290]

(a)....... Childhood Accommodation ............................................................ [290]

(b)....... Adult Accommodation ................................................................... [298]

5. Activities of Daily Living/Mobility/
Positioning Equipment............................................................................... [301]

6. Transportation........................................................................................... [302]

7. Therapies.................................................................................................. [305]

(a)....... Overview....................................................................................... [305]

(b)....... Occupational Therapy.................................................................... [308]

(c)....... Physiotherapy............................................................................... [311]

(d)....... Speech and Language Therapy....................................................... [316]

(e)....... Case Management......................................................................... [329]

8. Educational Requirements.......................................................................... [330]

9. Psychological Consultation......................................................................... [331]

10. Vocational Consultation.............................................................................. [334]

11. Memberships............................................................................................ [336]

12. Contingency.............................................................................................. [337]

13. Calculations.............................................................................................. [341]

F. In-Trust Award....................................................................................................... [342]

G. Special Damages.................................................................................................. [352]

H. Management Fee\Income Tax Gross-Up.................................................................. [358]

SUMMARY [359]

INTRODUCTION

[1] Benjamin Fullerton should have been a healthy baby. As a result of negligence in the management of his mother's labour, he suffered catastrophic brain damage from oxygen deprivation at birth. He cannot walk on his own. He cannot stand or sit without support. He cannot use his hands. He cannot speak. He will have a shortened lifespan. With proper care, this all would have been avoided.

[2] Benjamin now seeks damages from Dr. Delair and the Langley Memorial Hospital (the "Hospital"). The main issue for determination is which of the medical professionals was negligent. The doctor blames the nurses; the nurses blame the doctor. Both agree that someone was negligent. The Hospital is vicariously liable for the actions of the nurses.

[3] There are conflicts in the evidence as to whether the nurses provided the doctor with certain critical information during Mrs. Fullerton’s labour. These conflicts must be resolved in order to determine liability. Resolution will require a detailed review of the events leading up to Benjamin's birth, an examination of the nursing charts and a review of the evidence of certain experts. It is also necessary to determine if the failure to act on certain information contributed to Benjamin’s injury.

[4] The assessment of damages also raises a multitude of issues. Contentious matters include life expectancy, the cost of future care, Benjamin's loss of future earning capacity, the in-trust award for Mrs. Fullerton, and certain items of the special damages claim.

LIABILITY

A. Pre-Admission

[5] Benjamin is the first child of Lori Fullerton and her husband, David. He was born at the Hospital shortly after 1:00 a.m. on October 5, 1998.

[6] At the time of Benjamin's birth, Mrs. Fullerton was 30 years old. During her pregnancy, she was under the care of her family physician, Dr. Steven Hansen. Her pregnancy was largely uneventful.

[7] Mrs. Fullerton's due date was September 26, 1998. As the pregnancy had gone well past the due date, Dr. Hansen had planned to induce labour on October 6, 1998.

B. Admission

[8] On Sunday, October 4, 1998, Mrs. Fullerton began to experience regular contractions and some discharge of amniotic fluid. She thought she might be going into labour and, accompanied by her husband, went to the Hospital at about 18:20 h. She was formally admitted as an in‑patient at 19:15 h.

[9] Dr. Delair was the on-call general practitioner handling deliveries for Dr. Hansen's practice that weekend. He had never met Mrs. Fullerton. On the evening of October 4th, Dr. Delair was already at the Hospital, working a shift in the Emergency Department.

[10] When Mrs. Fullerton arrived, Nurse Jan Kaur performed an initial assessment. Nurse Kaur connected her to an electronic foetal heart monitor (“EFM”). She noted that Mrs. Fullerton had an elevated temperature and that the EFM strip showed tachycardia (a baseline foetal heart rate above 160 beats per minute), no accelerations, and possibly some shallow decelerations.

[11] Dr. Delair first became involved in Mrs. Fullerton's care when Nurse Kaur contacted him in the Emergency Department at approximately 18:58 h on October 4, 1998. Dr. Delair came upstairs from the Emergency Department and assessed Mrs. Fullerton with Nurse Kaur present. He performed a vaginal examination and recorded that Mrs. Fullerton was 3‑4 cm. dilated and 100% effaced, that the head was at ‑1, that there was a positive test for nitrazine, and an elevated maternal temperature of 38.5º. He noted that the baby's heart rate was between 160 and 165 beats per minute with fair variability, and that Mrs. Fullerton was in early active labour.

[12] As first labours tend to be longer, all concerned assumed that Mrs. Fullerton was still many hours from delivery. Dr. Delair did not share Nurse Kaur's concern about the EFM strip. Dr. Delair noted that antibiotics could be prescribed if Mrs. Fullerton's temperature remained elevated.

[13] A nursing shift change took place at 19:30 h. Tamara Straathof assumed the role of Charge Nurse from Nurse Kaur. Ann Charlton (then Ann McGillivray) became the primary nurse assigned to Mrs. Fullerton.

C. Hospital Records

[14] Once a maternity patient is admitted, the Hospital maintains numerous records to record events which take place subsequent to the patient's admission. The main record is the partogram maintained by the nursing staff. The nurses also record any orders given by the doctor and the doctor himself makes progress notes of his observations. Nurses also make notations on the EFM strips.

[15] All witnesses agreed that it is important that the charts be accurate and complete. The witnesses also agreed that significant events should be recorded and that if events are significant enough to be recorded, where possible, they should be recorded when they occur. Nurse Charlton agreed that significant events would include the identification of late decelerations on a foetal heart strip, the communication of that information to the doctor, and any response the doctor made to such information.

D. The Foetal Monitor Strips

[16] The EFM monitors both the foetal heart rate and the mother's contractions. Much of the expert evidence concerned the interpretation of the EFM strips. Three EFM strips were in evidence. Strip No. 1 ran from 18:25 to about 19:10 h. Strip No. 2 ran from 21:00 to 22:37 h, while Strip No. 3 ran from 22:38 to 01:00 h.

[17] The interpretation of an EFM strip requires examination of the baseline heart rate, baseline variability and decelerations of the rate over time. The baseline rate is a running average of the foetal heart rate over several minutes. A normal baseline rate at term is 120 – 160 beats per minute. The baseline rate may be elevated by maternal fever, anxiety, pain, stimulant drugs, or by foetal compromise.

[18] Variability refers to fluctuation in the instantaneous foetal heart rate, from one beat to the next. Variability forms the background against which other features of an electronic foetal heart record are interpreted. Normal variability is 10 to 15 beats per minute. Hypoxia (oxygen deficiency), narcotics and foetal sleep reduce baseline variability. Reduced variability is the main component of all patterns suggesting foetal compromise.

[19] Foetal movement, maternal fever or anxiety, drugs and foetal hypoxia may provoke acceleration or deceleration of the foetal heart rate. Accelerations are a reliable sign of good foetal condition. Decelerations may connote foetal compromise.

[20] During the trial, witnesses referred to three types of decelerations, namely: variable; variable with a late component (or hybrid deceleration); and late. Variable decelerations can happen at any time compared with the contraction pattern. Variable decelerations with a late component imply a variable deceleration trying to become a late deceleration. This is more ominous and not reassuring. It is a strip abnormality that nurses are expected to recognize and bring to the attention of the physician.

[21] Late decelerations occur after the peak of the contraction. Late decelerations are in most cases likely due to hypoxia. Both variable and late decelerations can be signs of severe foetal compromise, although the causes are different. Obstetric nurses are expected to know the difference between late and variable decelerations.

E. Evidence of Participants

1. Nurse Charlton

[22] Nurse Charlton received her Registered Nursing designation in 1974. She has done obstetric nursing at the Hospital since 1976 and has taken courses in electronic foetal heart monitoring and neonatal resuscitation. Nurse Charlton did post‑basic obstetric training through the British Columbia Institute of Technology and received her Perinatal Certificate in early 1998. She continues to work as an obstetric nurse at the Hospital.

[23] On October 4, 1998, Nurse Charlton’s shift started at 19:30 h. The Hospital provided obstetric patients with one‑on‑one nursing care. Mrs. Fullerton was Nurse Charlton's only patient that evening.

[24] When Nurse Charlton commenced her shift, she received a report from Nurse Straathof concerning Mrs. Fullerton. She was advised that Mrs. Fullerton was in early labour, was 3 cm. dilated, had an elevated temperature, and was having foetal tachycardia. Nurse Charlton was told that Dr. Delair had seen the patient and would assess her again in two hours to determine if her temperature remained elevated. Nurse Charlton understood that Dr. Delair would be returning in person to do the assessment.

[25] Nurse Charlton first assessed Mrs. Fullerton shortly after 20:00 h. She checked the foetal heartbeat with an external transducer and noticed it was still tachycardic. Nurse Charlton observed normal variability in the heartbeat.

[26] Nurse Charlton had Mrs. Fullerton take a shower. She thought the shower might help Mrs. Fullerton relax and this might, in turn, reduce the foetal heart rate.

[27] Mrs. Fullerton showered for approximately 40 minutes. When she returned from the shower, Nurse Charlton re‑attached the foetal heart monitor. The foetal heart rate had come down to 140 beats per minute and there was good variability. Nurse Charlton observed some variable decelerations. She was not concerned about the decelerations and considered the EFM strip to be reassuring.

[28] Nurse Charlton’s assessment at 21:15 h showed a foetal heart rate around 130 beats per minute with normal variability. There were some variable decelerations. Mrs. Fullerton's temperature had come down to 38.1º. Nurse Charlton did not think it necessary at that time to contact Dr. Delair. Nurse Charlton continued to believe that Dr. Delair would be attending personally to see the patient.

[29] At approximately 21:50 h, Dr. Delair telephoned the maternity ward to enquire about Mrs. Fullerton's labour. He spoke to Nurse Charlton, who advised him that although Mrs. Fullerton's temperature had come down somewhat, it was still mildly elevated at 38.1º. Dr. Delair ordered antibiotics. After the antibiotics were administered, Mrs. Fullerton's temperature came down to normal.

[30] Nurse Charlton testified that during the 21:50 h telephone call she told Dr. Delair not only Mrs. Fullerton's temperature, but also that there were late decelerations on the EFM strip although variability was good. At the time of this call, Nurse Charlton was not concerned about the condition of the foetus.

[31] During the 21:50 h telephone conversation, Nurse Charlton did not ask Dr. Delair when he would be coming to attend the patient. She continued to assume that he would attend at some point.

[32] Nurse Charlton did not contemporaneously chart the 21:50 h telephone conversation with Dr. Delair. Some hours after Benjamin's birth, she made a late entry on the partogram which reads as follows:

21:50 Dr. Delair phoned to enquire about patient, informed of monitor strip – variable decelerations and some late decelerations; and temperature.

[33] Just after 22:00 h, Nurse Charlton noted on the partogram the letters “V” and “L” on the line for decelerations. She said the letters represented decelerations in the foetal heart rate occurring prior to 22:00 h. At trial, she testified that the letters stood for both variable and late decelerations. At her examination for discovery, she had given different evidence, saying the letters indicated variable decelerations with a late component.

[34] At 22:15 h, Nurse Charlton charted another assessment, noting that the foetal heart rate was 150 beats per minute and that there was normal variability with variable and late decelerations. Mrs. Fullerton's temperature had come down to 36.9º. She was having five contractions per 10 minutes, with each contraction lasting 30 to 45 seconds.

[35] Nurse Charlton continued to monitor the EFM strip, noting that there continued to be variable decelerations in the foetal heart rate, but she believed the variability itself was good and she found the strip to be reassuring.

[36] At 23:00 h, Nurse Charlton observed that variability had decreased and there were now some late decelerations. The reduced variability lasted for about 15 minutes and by 23:15 h had picked up again. Nurse Charlton considered this to be normal.

[37] At 23:40 h, Nurse Charlton believed the patient was getting more distressed and believed Mrs. Fullerton should take something to ease the pain. Before giving pain medication to a person in labour, it is necessary to check the dilation. Nurse Charlton did so at approximately 23:55 h and noted on the chart that Mrs. Fullerton was 5‑6 cm. dilated.

[38] During the course of this examination, Mrs. Fullerton's membranes ruptured and thick meconium was observed. Nurse Charlton wrote on the partogram:

SRM-meconium 2355

Dr. Delair notified

[39] Nurse Charlton says that subsequent to the examination, at approximately 23:55 h, she telephoned Dr. Delair seeking Demerol for Mrs. Fullerton. Only doctors can prescribe medication. Dr. Delair authorized the administration of Demerol. Nurse Charlton recorded on the partogram that the Demerol was administered at 00:05 h.

[40] On the "Doctor’s Orders" page of the nursing chart, Nurse Charlton recorded that Dr. Delair gave the order for Demerol at 23:50 h, some five minutes earlier than the time she had recorded for the vaginal examination. When questioned about the discrepancy, Nurse Charlton explained that the clocks in the Hospital are not synchronized. She adamantly denied that she had discovered the meconium at some time after the order for Demerol had been given.

[41] Nurse Charlton also made notations on the EFM strip. Between 23:50 h and 00:00 h she wrote the following on the EFM strip:

SRM-meconium

V/E 5-6 cm

Between 00:00 h and 00:10 h she wrote on the EFM strip:

Demerol & Gravol

[42] Nurse Charlton says she made the 23:55 h telephone call to Dr. Delair from the nursing station in the presence of Nurse Straathof. She says she told Dr. Delair that Mrs. Fullerton was 5‑6 cm. dilated and that there had been thick meconium when her membranes ruptured. Nurse Charlton says she also told Dr. Delair that the EFM strip was showing variable and late decelerations.

[43] Nurse Charlton says that Dr. Delair advised her during this telephone conversation that his shift in the Emergency Department was ending at midnight and that Dr. Zucarro would be assuming control of Mrs. Fullerton's labour. Dr. Zucarro was Dr. Hansen’s locum. On her examination for discovery, Nurse Charlton testified that after this conversation she assumed that Dr. Delair would not be coming to assess the patient and that she must have communicated that information to her Charge Nurse. At trial, she confirmed those answers were true.

[44] There is a notation on the partogram that Dr. Delair was notified of meconium. There is no note in the nursing records that Dr. Delair was told during the 23:55 h discussion about late decelerations.

[45] At approximately 00:15 h, Mrs. Fullerton began to feel the urge to push. Nurse Charlton did a further vaginal examination and discovered, much to her surprise, that Mrs. Fullerton was now 9½ cm. dilated. She realized that the baby would likely be delivered soon. She contacted Nurse Straathof and asked her to page Dr. Delair, who she believed might still be in the building.

[46] Between 00:20 h and 00:30 h, Nurse Charlton wrote on the EFM strip:

Urge to push

V/E at rim

[47] At 00:38 h, there was a large deceleration in the foetal heart rate. It went down to 80 beats per minute and about 60 seconds passed before it came back up. Expert evidence suggests that Benjamin’s brain injury started at that time.

[48] In response to the large deceleration, Nurse Charlton gave Mrs. Fullerton oxygen and turned her on her left side. Mrs. Fullerton kept the oxygen mask on until delivery. Prior to 00:38 h, Nurse Charlton had not re‑positioned Mrs. Fullerton, given her oxygen, or administered her fluids.

[49] At approximately 00:50 h, Nurse Charlton did a further vaginal examination. Mrs. Fullerton was fully dilated. About this time, Dr. Delair arrived in the labour room. Mrs. Fullerton began pushing and Benjamin was born at 01:04 h.

[50] Benjamin was born flat. There was no heartbeat. Dr. Delair inserted an endotracheal tube and suctioned meconium. Nurse Charlton started cardiac compressions. Dr. Delair intubated the baby and resuscitation efforts were undertaken. Ultimately, Dr. Ward, a paediatrician, arrived and took over Benjamin's care.

2. Nurse Straathof

[51] Nurse Straathof received her Registered Nursing designation in 1985. By October 1998, she had worked as a perinatal nurse for 13 years. In 1987, she obtained an Advanced Certificate in Maternal Foetal Cardio Cartography. She was a foetal health surveillance instructor.

[52] On October 4, 1998, Nurse Straathof was the Charge Nurse in the maternity ward at the Hospital. The Charge Nurse receives reports from the day shift, assigns nurses to patients, and checks all emergency equipment. The Charge Nurse attends all deliveries and is also responsible for assessing all individuals who come through the maternity unit. The position of Charge Nurse is shared by senior nurses, including Nurse Charlton.

[53] When Nurse Straathof came on shift at about 19:30 h, she received a report from Nurse Kaur concerning Mrs. Fullerton. She was told that Mrs. Fullerton had an elevated temperature and foetal tachycardia. She was advised that Dr. Delair had assessed Mrs. Fullerton and that he would be returning in two hours.

[54] Nurse Straathof assigned Mrs. Fullerton to Nurse Charlton. She repeated to Nurse Charlton the information she had received from Nurse Kaur.

[55] At approximately 20:40 h, Nurse Straathof asked Nurse Charlton about the EFM strip. Nurse Charlton told her that Mrs. Fullerton was not presently being monitored as she was just getting out of the shower.

[56] Nurse Straathof next had contact with Nurse Charlton at about 22:00 h. Nurse Charlton told Nurse Straathof that she had just had a conversation with Dr. Delair and that he had ordered antibiotics. Nurse Charlton told Nurse Straathof that she had informed Dr. Delair that there were some variable and late decelerations on the EFM strip.

[57] The next contact between Nurse Straathof and Nurse Charlton was shortly before midnight. Nurse Charlton came to the nursing station and told Nurse Straathof that she had just examined Mrs. Fullerton, whose cervix was 5‑6 cm. dilated. Nurse Charlton told her that Mrs. Fullerton's membranes had ruptured and there was thick meconium. She also told Nurse Straathof that there continued to be late and variable decelerations on the EFM strip. Nurse Straathof says she told Nurse Charlton to call Dr. Delair.

[58] Nurse Straathof was present when the telephone call was placed. She heard Nurse Charlton say to Dr. Delair that the patient's membranes had just ruptured and there was thick meconium, that she was 5‑6 cm. dilated, and that there continued to be variable and late decelerations on the strip. Nurse Charlton also advised Dr. Delair that Mrs. Fullerton wanted something for pain.

[59] Nurse Straathof did not hear Nurse Charlton specifically ask Dr. Delair to come and assess the patient, but when Nurse Charlton hung up the telephone, Nurse Straathof asked her if he said he was coming and Nurse Charlton said he was. Nurse Straathof says that if she had been told that Dr. Delair was not going to be attending on Mrs. Fullerton, she would have taken steps to ensure that another doctor came and examined Mrs. Fullerton.

[60] Nurse Straathof's next involvement was at 00:15 h when Nurse Charlton pushed the call bell and told her that Mrs. Fullerton was almost fully dilated and to call Dr. Delair for delivery. Nurse Straathof used the phone at the desk to page him. She says when she reached Dr. Delair he told her that he was in his car heading home. She says she was amazed that he had left the Hospital without coming to assess the patient. She says she told Dr. Delair that he needed to come back for the delivery. Nurse Straathof did not chart her telephone conversation with Dr. Delair.

[61] Nurse Straathof says that Dr. Delair arrived on the maternity ward at approximately 00:30 h. He immediately went into Mrs. Fullerton's room. Subsequently, Nurse Straathof answered the emergency buzzer that called her in for the delivery at 00:50 h. At that time, Dr. Delair was at the foot of the bed and Mrs. Fullerton was pushing. Benjamin was born soon after.

[62] During the resuscitation efforts, Nurse Straathof suctioned the baby's mouth and nose for thick meconium. She used the stethoscope to listen for a heart rate, but did not hear one. Nurse Charlton then started cardiac compressions, while Nurse Straathof reached into a drawer for epinephrine to administer to the baby.

[63] Nurse Straathof says that Dr. Delair was panicky and flustered during the resuscitation. Benjamin's initial response to resuscitation was good and the heart rate soon climbed to 60 and, ultimately, to 120 beats per minute. Dr. Delair inserted a second endotracheal tube at 01:15 h.

[64] Benjamin was then transported to the nursery from the labour room. The baby's colour remained dusky. Dr. Ward arrived at approximately 01:30 h and took over the resuscitation efforts. Dr. Ward discovered that the intubation tube was in the oesophagus instead of the trachea. He pulled it out and reinserted it properly.

[65] During the course of the evening, Nurse Straathof had not observed the EFM strip. When shown the strip at trial, Nurse Straathof agreed that there were late decelerations in the foetal heart rate beginning on the strip after 21:20 h. She also observed other late decelerations beginning at 22:50 h. Nurse Straathof agreed that the EFM strip was worrisome because the decelerations were persisting. She further agreed that if she had been aware of the decelerations, she would have wanted a doctor to examine the strip.

3. Dr. Delair

[66] Dr. Delair obtained his medical degree in 1992. He engaged in a period of family practice training from 1992 until mid‑1994 at Dalhousie University. In 1994, he was licensed in British Columbia and commenced a general practice in Langley. He performed his first delivery in practice in January 1995. By October 1998, he had delivered approximately 100 babies. His practice is primarily low‑risk obstetrics.

[67] Mrs. Fullerton was not a patient in his practice. On the evening of October 4, 1998, Dr. Delair was doing call coverage for a group of obstetric physicians. Each of the physicians covered their own patients during the week and on the weekends each doctor would cover other members of the group one weekend out of five. Dr. Hansen was Mrs. Fullerton's physician and was one of the members of the call coverage group.

[68] Dr. Delair also did regular Emergency Room shifts at the Hospital. He was working in the Emergency Department when he was called to attend upon Mrs. Fullerton.

[69] Dr. Delair's first contact with Mrs. Fullerton came at about 19:00 h when he saw her in an assessment room. Dr. Delair reviewed the prenatal records that had been completed by Dr. Hansen during Mrs. Fullerton's prenatal care. The records suggested that she had had a generally uncomplicated pregnancy. He reviewed with Mrs. Fullerton her pregnancy and the records Dr. Hansen had provided to make sure there were not any other outstanding issues of which he was unaware. They discussed how she was coping with her labour and whether she had any concerns. As previously mentioned, he also conducted a vaginal examination.

[70] Dr. Delair had some concern about Mrs. Fullerton’s mildly elevated maternal temperature. He was also concerned that the baby's heart rate was slightly elevated. He noted that Mrs. Fullerton's cervix was fully effaced and that she was 3 cm. dilated.

[71] Dr. Delair determined that Mrs. Fullerton was in active labour and should be admitted. He was going to re‑assess her condition in two hours to determine whether antibiotics should be administered. He does not recall if he said that he would re‑attend in person or just check in with the nurse.

[72] Dr. Delair did not expect that Mrs. Fullerton would deliver her baby for several hours. After his initial assessment, he called Dr. Zucarro and they agreed that Dr. Delair would manage Mrs. Fullerton’s obstetric care until his Emergency Room shift ended, and that Dr. Zucarro would assume her care thereafter.

[73] Dr. Delair expected that the nurses would monitor Mrs. Fullerton and that he would be contacted if her temperature remained elevated. Having not heard from the nurses, Dr. Delair called the maternity ward at around 21:50 h to check on Mrs. Fullerton's condition. He believes he spoke to Nurse Charlton, who told him that Mrs. Fullerton's temperature had come down, but at 38.1º it was still mildly elevated. He ordered an antibiotic to reduce the temperature. Dr. Delair does not recall the nurse expressing any additional concerns or advising him of any worrisome signs in regard to the labour.

[74] Dr. Delair believed the information he received was reassuring. He has no recollection of being told during the 21:50 h telephone conversation or at any point that evening that there were signs of variable or late decelerations in the foetal heart rate. Dr. Delair says that if he had been told there were variable or late decelerations, he would have immediately attended to assess the patient.

[75] After the telephone call, Dr. Delair continued his shift in Emergency. He had worked with Nurse Charlton previously and knew that she was a very experienced maternity nurse. He believed that if there was any concern at any point, either in regard to maternal well‑being or how the baby was tolerating labour, Nurse Charlton would contact him. His obligations in Emergency did not impede his ability to treat Mrs. Fullerton.

[76] Dr. Delair had no further contact with the maternity ward until Nurse Charlton called him just before midnight. During this telephone conversation the primary topic of discussion was Nurse Charlton's request for Demerol for Mrs. Fullerton. Although Dr. Delair says he does not recall the exact specifics of the conversation, he says they would have discussed how well Mrs. Fullerton and the baby were tolerating labour. Dr. Delair says he was not told of meconium or that the baby was having late decelerations. He says that if he had been told that meconium was present and that the baby was having late decelerations, he would not have ordered an intramuscular dose of a potent narcotic analgesic and would have immediately attended the patient.

[77] Dr. Delair is quite certain he was told that Mrs. Fullerton was 5 cm. dilated. He says nothing was said to him that suggested there was any need for him to attend on Mrs. Fullerton before leaving the Hospital. Given that she was still just 5 cm. dilated, he believed Mrs. Fullerton remained a number of hours away from delivery.

[78] Dr. Delair says he advised Nurse Charlton that he would soon be leaving the Hospital and that Dr. Zucarro would be assuming responsibility for the care of Mrs. Fullerton. When their conversation ended, Dr. Delair believed he was finished with Mrs. Fullerton's labour care.

[79] At trial, Dr. Delair testified that he was absolutely positive that Nurse Charlton did not tell him about the meconium. In discovery, he was less certain, testifying:

	Q.:	Were you in fact contacted around midnight and told there was meconium?
	A.:	Well, that is just before the conversation when I gave the order for Demerol and Gravol, so I spoke to the nurse at that time, but I don't recall whether or not she told me there was meconium.

[80] In the course of explaining his evidence at discovery, Dr. Delair testified:

The reason I can say that I absolutely know I was not told about thick meconium is that, given that information, I absolutely know what I would have done with that information. I absolutely would have attended the patient. There is no doubt in my mind about that.

[81] Counsel then put to Dr. Delair the following evidence from his examination for discovery, which he acknowledged was true:

	Q.:	What would your response have been if you were told there was meconium?
	A.:	Well, again, it depends on whether the meconium was just staining the fluid or whether there was thick or particulate meconium.
	Q.:	Right.
	A.:	So again, I don't recall the specifics of the conversation, but nothing was told to me that would make me worry that there was significant foetal distress.
	Q.:	But let's assume for the moment that you were told there was meconium. What would your response – - what would your response be in that circumstance?
	A.:	Again, if the meconium was just staining in the fluid and there was no other suggestion of foetal distress, then again, it is just one of those indicators that we are aware of that we – - you know, that we just follow.

[82] Dr. Delair says he was paged shortly before 01:00 h to come and attend Mrs. Fullerton because delivery was imminent. He says that when he received the page he was in his car, pulling out of the doctors' parking lot. Dr. Delair says he turned around and "somewhat grudgingly" came back to the Hospital to attend to the delivery. He denies that he was paged shortly after 00:15 h, or that he had already left the parking lot and was driving home when he was paged.

[83] Dr. Delair attended the maternity ward and went into Mrs. Fullerton's room while still in his street clothes. He determined that he had time to get changed, went and got his "greens" on, and then returned to Mrs. Fullerton's room. A family video shows Dr. Delair returning to the delivery room at approximately 00:50 h.

[84] Dr. Delair's recollection is that the baby was delivered very quickly after his return. He believes that the entire second stage of labour lasted no more than 14 minutes.

[85] Dr. Delair says that when he attended for the delivery the nurses did not advise him of any concerns. He says if he had been so advised, he would have been more prepared for a baby who was going to potentially struggle. He does not recall examining the EFM strip prior to birth. He says he would have assumed that if there were concerns about the strip, they would have been brought to his attention earlier. He says the delivery was happening so quickly upon his arrival that his attention was concentrated on the imminent birth, as opposed to the monitor.

[86] Dr. Delair says he was completely surprised by Benjamin's condition at birth. He was in no way prepared for a baby to be delivered absolutely flat. He says he had no prior knowledge that meconium was present. Dr. Delair says if he had known of the meconium, he would have arranged for a paediatrician to be present for the delivery.

[87] Dr. Delair says Benjamin had no spontaneous movement or respiratory efforts. The initial step in resuscitation was to suction meconium to prevent the baby from aspirating, or breathing meconium into his lungs. CPR compressions were then initiated. The baby was intubated and a millilitre of epinephrine was given in the endotracheal tube. Narcan was administered both intramuscularly and by the endotracheal tube.

[88] The initial drugs inserted in the tube appeared to have the desired effect; Benjamin's heart rate quickly moved above 100 beats per minute. At 01:15 h, the endotracheal tube was suctioned and removed and a second tube inserted. More Narcan was administered.

[89] At 01:30 h, the baby was transferred from the delivery room to the nursery by isolette, accompanied by the medical personnel involved in the resuscitation effort. The intubation tube was, however, not secured. Almost immediately upon delivery of the baby to the nursery, Dr. Ward arrived and took control of Benjamin's care.

4. Mrs. Lori Fullerton

[90] Mrs. Fullerton has limited recollections of the events leading up to Benjamin's birth. Benjamin was her first child. Prior to her admission to the Hospital her pregnancy was uneventful.

[91] On the evening of October 4, 1998, Mrs. Fullerton went to the Hospital because she was experiencing contractions and some discharge of amniotic fluid. Dr. Delair attended on her in the assessment room and performed an internal examination. He told Mrs. Fullerton he was going back to the Emergency Department, but would be in to check on her later.

[92] Shortly thereafter, she met Nurse Charlton, who told her that Dr. Delair would be coming back to re‑assess her at about 21:00 h. Nurse Charlton encouraged Mrs. Fullerton to have a shower. When she returned to bed, the foetal monitoring machine was re‑attached. She felt nauseous.

[93] Nurse Charlton checked on her from time to time. At some point in the evening, an IV was inserted. Mrs. Fullerton does not recall being told that it was on Dr. Delair's instructions.

[94] Between 22:00 and 00:00 h, Nurse Charlton offered Mrs. Fullerton Demerol to ease her pain. Mrs. Fullerton initially refused because she first wanted to see Dr. Delair. Subsequently, she told Nurse Charlton that she wanted the Demerol. Mrs. Fullerton believes there were at least 30 minutes between these two discussions.

[95] At some time Nurse Charlton told Mrs. Fullerton that there had been a significant discharge of fluid. Mrs. Fullerton did not, herself, realize that the discharge had occurred. Mrs. Fullerton says there was no mention of meconium.

[96] Mrs. Fullerton recalls having an urge to push and being told to wait for the doctor. She is not sure how long she waited before his arrival. Mrs. Fullerton remembers Dr. Delair telling her to go ahead and push, and that it only took three or four pushes before Benjamin was delivered.

[97] Mrs. Fullerton says that throughout her labour Nurse Charlton never expressed any concerns. After Benjamin's birth, Mrs. Fullerton was not initially aware of any problems.

5. Mr. David Fullerton

[98] Mr. Fullerton was present throughout the evening. He met Dr. Delair at about 19:00 h, when he initially examined Mrs. Fullerton. Dr. Delair told the nurse he was going to Emergency and would be back in an hour or two.

[99] &nbs

Citation:	*Fullerton (Guardian ad litem of) v. Delair et al.,*
	2005 BCSC 204