Cojocaru v. British Columbia Women’s Hospital and Health Centre

2013 SCC 30
Download Judgment: English French

The plaintiff, who had previously given birth via caesarean section, was due to give birth a second time. Her obstetrician recommended a vaginal birth. During labor, Cojocaru’s uterus ruptured, which restricted oxygen supply to the baby. The scar from the previous caesarean contributed to the rupture, and an emergency caesarean section was performed. The baby suffered brain damage and, as a result, developed cerebral palsy. The mother sued the hospital, attending nurses, attending doctors and the obstetrician for negligence.

The trial court found the Hospital, attending nurses, and doctors liable for negligence and awarded $4 million in damages.

The British Columbia Court of Appeal ordered a new trial because the trial judge had copied extensively from the plaintiffs’ submission.  A dissenting judgment reviewed the case on its merits and determined that the action should be dismissed. The plaintiffs appealed the order of a new trial. The defendant hospital and a nurse cross-appealed asking that the court resolve the issue of liability and damages instead of deferring the issue to a new trial.

The Supreme Court held that the hospital, doctors, and attending nurses were not negligent because a causal relationship could not be established between their actions and the harm suffered by the baby.

The Court held that the evidence did not support a causal relationship between the obstetrician’s recommendation and the harm because the obstetrician would have recommended vaginal birth even if she had investigated the uterine scar. No causal connection existed between the doctor inducing labor without determining the position of the uterine scar and the injury. The attending nurse was not negligent because, even if she had reacted to the signs of uterine rupture earlier, the child could not have been delivered in time to avoid permanent brain damage because no operating room and anesthetist was readily available.

The Court upheld the liability of the obstetrician for failing to obtain the mother’s informed consent to vaginal birth after caesarian. The obstetrician quoted an 80% chance of success when the actual success rate was significantly lower. The discrepancy resulted from the obstetrician’s inaccurate belief that the mother’s previous caesarian had been elective rather than for failure to progress.

In addition, the Court held that the trial judge could not be found to have failed to consider issues and made an independent decision on them merely because the judge did not discuss the facts and issues in his own words. The fact that the trial judge rejected some of the plaintiffs’ key submissions demonstrated that he considered the issues independently and impartially.

“In this case, we agree with Smith J.A., dissenting, that despite the judge’s extensive adoption of the plaintiffs’ argument, the evidence does not show that he failed to put his mind to the critical issues and decide them independently and impartially. The reasons, read as a whole, show that the trial judge considered the issues and the arguments on both sides, and came to a conclusion on each of the main issues.” Para. 70.

“Dr. Yue concluded that Ms. Cojocaru’s previous caesarean had been elective. On this basis, Dr. Yue advised Ms. Cojocaru that VBAC would have an 80 percent chance of success (trial reasons, at para.  03). This was in error. As found by the trial judge and supported by both the operative report and the  Romanian obstetrician, Dr. Clepce, the Romanian caesarean section was undertaken for failure to progress (paras. 104-5). As Dr. Yue admitted, after a caesarean section for failure to progress, the likelihood of a successful VBAC is “significantly less than 80%” (accepted by the trial judge, at para. 106). Thus, Dr. Yue could not have properly advised her patient of the risks associated with VBAC.” Para. 95.

“The critical question is this: If Nurse Bellini had called Dr. Green at 18:00 as the trial judge found she should have, could Eric have been born before 18:28 to 18:33, when permanent brain damage occurred? The answer to this question, on the evidence before us, is no. The only operating room with an anaesthetist was not available until shortly before 18:30. Ms. Cojocaru’s operation commenced at the earliest possible time, 18:30, when the anaesthetist entered her operating room, and Eric was duly delivered at 18:41. Even if Nurse Bellini had sounded the alarm and called Dr. Green at 18:00 instead of having Nurse Verwoerd call him at 18:15, and if the caesarean section had been ordered within 10 minutes of that call, as appears likely, the result would have been the same because the operation could not have commenced before it did.” Para. 113.