Ontario Trial Judge Dismisses Medical Malpractice Action

The medical malpractice decision of Suwary v. Women's College Hospital et al., 2009 CanLII 31985 (ON S.C.) was delivered by Justice J. Patrick Moore on June 19, 2009. Justice Moore dismissed the action against the defendant obstetrician, the defendant hospital and a member of its obstetrical nursing staff after a trial lasting approximately three months.

The plaintiffs alleged that the management of the pregnancy, labour and delivery was negligent. Damages had been settled prior to trial. The main issue at trial was whether the defendant obstetrician's decision to intervene to assist the delivery and whether his actions following that decision to intervene met the standard of care. The plaintiffs also alleged that the obstetrical nursing staff failed to appropriately monitor the fetal heart rate and respond to changes. The plaintiffs called six expert witnesses on standard of care and causation while the defendant doctor called one. Justice Moore held that the defendants met the standard of care. In addition, Justice Moore held that the defendant obstetrician did not cause the intrapartum asphyxia suffered by the fetus and that nothing he could have done in the management of the labour would have avoided the insult suffered as a result of the unpredictable asphyxial episode. Justice Moore found that the conduct of the obstetrical nurses was exemplary.

The intrapartum asphyxia was caused by an unforeseen event; specifically, likely an occult (undetectable) cord prolapse that began shortly after the mother began to push producing deep decelerations of the fetal heart. Justice Moore also decided an important mid-trial motion limiting the plaintiffs to two obstetrical experts rather than the four obstetrical experts they intended to call. He held that the opinions of the additional obstetric experts overlapped with the trial evidence already heard from the first two obstetrical experts and therefore it was not necessary for the plaintiffs to call more experts to fairly and fully present their case. McCarthy Tétrault LLP acted for the defendant obstetrician with a team comprised of Frank McLaughlin, Kenneth Morris and Sharon Wilmot.

Jerome Morse and Lori Stoltz of Adair Morse LLP acted for the plaintiffs.

Michael McKelvey and Anna Marrison of Borden Ladner Gervais LLP acted for the defendant hospital.