Read time: 10 minutes
OVERVIEW
Case: Rathan et al. v. Scheufler et al.
Sankavi Rathan had a rough start in life. During her birth, her shoulder became stuck behind her mother’s pubic bone in a condition known as shoulder dystocia. She suffered permanent injuries to her brachial plexus, the network of nerves at the C5-T1 levels that innervates the shoulder, arm and hand. With her mother Vasanthy Rathan, father Rathan Balasingam, and sister Ragavi Rathan, Sankavi brought a medical negligence action against Dr. Scheufler, the obstetrician who delivered her.
Emery J. found that Dr. Scheufler fell below the standard of care owed by an obstetrician and that the greater than gentle force he used while delivering Sankavi caused her permanent brachial plexus injury (“BPI”). The Plaintiffs were awarded more than $800,000 in damages.
LABOUR, DELIVERY, SHOULDER DYSTOCIA, AND BRACHIAL PLEXUS INJURY
On the morning of February 27, 2009, when Vasanthy was one week overdue with her second daughter, she travelled to Mississauga Hospital for induction of labour. She saw obstetrician Dr. Scheufler in the early afternoon.
At 5:50 PM, Vasanthy’s water broke spontaneously. By 9:40 PM, Vasanthy’s cervix was fully dilated and she started to push. Forty minutes later, Dr. Scheufler re-assessed Vasanthy, and he unsuccessfully attempted to turn her baby from a face up to a face down position to make her later passage through her mother’s pelvis easier.
At 11:04 PM, Dr. Scheufler returned again to assess Vasanthy, who was exhausted because she had been pushing for 84 minutes (3 minutes longer than the run-time of the original Toy Story film). It was clear at this time that Vasanthy required assistance with the delivery. With Vasanthy’s consent, Dr. Scheufler used a vacuum to extract the baby’s head at approximately 11:15 PM. It was at this time that shoulder dystocia was identified, and Dr. Scheufler called for greater assistance in the delivery room. After a combination of traction and attempted maneuvers to disimpact Sankavi’s shoulder, at 11:17 PM, Sankavi was delivered weighing almost 11 pounds.
Sankavi was then admitted to the special care nursery at the Mississauga Hospital. After several weeks there, she was transferred to the Hospital for Sick Children where she was seen by a plastic surgeon, Dr. Howard Clarke. At two months old, she was presenting with no activity associated with her right arm. Dr. Clarke recommended surgical intervention and ordered testing to detect pathology of the spinal cord, which showed avulsion injuries of four nerve roots at the levels C6-T1 and a neuroma at the level of C5, indicating that scar tissue had grown around the injury site, putting pressure on the injured nerve and preventing the nerve from sending signals to her muscles. Her entire brachial plexus had been injured at birth.
Dr. Clarke recommended surgery on Sankavi’s brachial plexus to remove damaged segments of nerve, and to reconstruct them in whatever way possible with hopes to provide movement to her right shoulder and arm. She underwent a brachial plexus partial reconstruction with Dr. Clarke on June 11, 2009. The surgery failed to make use of the nerve roots avulsed at the levels of C6 to T1. Five years later, Dr. Clarke performed a second surgery on Sankavi. This time, Sankavi underwent a tendon transfer in an attempt to improve her wrist extension.
TRACTION INJURY VS. IN UTERO INJURY
The Plaintiffs alleged that Dr. Scheufler injured Sankavi when he applied more than gentle traction in a downward lateral direction after shoulder dystocia had been identified, while Dr. Scheufler argued that he used gentle traction and that Sankavi was injured by propulsive, in utero forces without shoulder dystocia.
As Sankavi’s parents had a limited recollection of her birth, and Dr. Scheufler unsurprisingly recorded in his notes that he did everything right, evidence regarding the forces at play during Sankavi’s birth and their impact on her injury fell within the hands of the expert witnesses.
PLAINTIFFS’ EVIDENCE
Exhausted after enduring the second stage of labour with contractions and pushing for 84 minutes, Sankavi’s mother Vasanthy remembered little about the birth. She recalled asking Dr. Scheufler for assistance and consenting to a vacuum assisted delivery.
Father Rathan was in the delivery room during Sankavi’s birth as well. He testified that he remembers his wife on the hospital bed, complaining she was in a lot of pain. Rathan recalled a team of two nurses and one doctor entering the room, and that Vasanthy was told to push. He told the court he could see the baby’s head and he remembered that a vacuum was applied to Sankavi’s head as part of the process to complete the delivery. He also recalled more people entering the room to assist. After Sankavi’s birth, Rathan remembers her being taken to an incubator.
DEFENDANT’S EVIDENCE
Dr. Scheufler testified that he used gentle downward traction to deliver Sankavi’s shoulder after shoulder dystocia was encountered. Employing “gentle downward traction” is also referred to in Dr. Scheufler’s delivery note. At trial, Dr. Scheufler testified that he meant “axial downward traction”. Emery J. treated this clarification as suspicious.
Dr. Scheufler admitted in cross-examination that Sankavi’s birth was not a situation where the baby was in danger of hypoxic ischemia to justify the application of greater than gentle traction to deliver her.
Dr. Scheufler said in his examination for discovery that he could not recall the number of times he attempted to deliver Sankavi using gentle downward traction, but he testified at trial that he used gentle traction only once when attempting to deliver the shoulder after shoulder dystocia was encountered.
PLAINTIFFS’ EXPERT EVIDENCE
Dr. Howard Clarke was called as a participant expert as he treated Sankavi surgically for her brachial plexus injury, and was also qualified as a litigation expert to give opinion evidence in the field of plastic surgery diagnosis, prognosis, treatment and rehabilitation of children with obstetrical and brachial plexus injuries, and the surgeries required to treat those injuries. Dr. Clarke described the myelogram he performed on Sankavi, and how it showed complete avulsions at 4 nerve roots. In cross-examination, Dr. Clarke testified that Sankavi’s C5 neuroma was not a compression injury as might be expected with an in utero injury, but that the C5 neuroma was a result of trauma of longitude and traction along the nerve. As Dr. Clarke described it, the C5 nerve root had been “torn sufficiently to produce this lump of scar, but that’s from the application of some external force.” Dr. Clarke spoke of a “severity spectrum” of brachial plexus injuries, and stated that Sankavi’s injuries lay close to the most severe end of the spectrum.
Dr. Timothy Draycott was qualified as an expert to give opinion evidence on the standard of care of obstetricians in resolving shoulder dystocia during birth in 2009, and the causes and prevention of BPI. While he is a British physician who did not practice in Canada in 2009, the obstetricians called as experts by both parties agreed that the standard of care for an obstetrician faced with a shoulder dystocia delivery was the same for the U.K., Canada, and the U.S.A. Dr. Draycott testified that the traction to be used in a shoulder dystocia emergency is the same traction required for delivery of the shoulders in a normal vaginal birth, where there is no difficulty with the shoulders. He cited European data that suggested when multiple nerve roots are injured permanently, this is indicative of hard pulling in a downward direction. As Sankavi suffered permanent injury to all five nerve roots of the brachial plexus, Dr. Draycott expressed the opinion that the most probable cause for her injury was excessive traction during shoulder dystocia.
Further, Dr. Draycott testified that Vasanthy’s lack of a rapid second stage of labour goes against the Defendant’s theory of Sankavi’s injuries. With a very fast second stage, the baby is pushed down the birth canal so rapidly that there can be a bang on the anterior shoulder that causes a transient brachial plexus injury. This was not the case with Vasanthy’s labour, which was exhausting and prolonged.
Dr. George Arnold, a specialist in Obstetrics and Gynaecology at Markham Stouffville Hospital, was qualified to give opinion evidence on obstetrics, the management of shoulder dystocia and the causes of BPI. Dr. Arnold described “gentle traction” as a feel that comes through knowledge and experience. Dr. Arnold testified that with a large baby who experiences shoulder dystocia with an anterior shoulder, the most common cause of brachial plexus injury was traction, and he concluded that Sankavi’s injury occurred because of inappropriately applied force by Dr. Scheufler. Dr. Arnold admitted in cross-examination that if Dr. Scheufler had followed the exemplary course of action set out in his delivery records, he would have met the standard of care expected of him.
Dr. Robert Allen is a bio-medical engineer called by the plaintiffs. Dr. Allen was qualified as an expert to give opinion evidence in the field of biomedical engineering on what caused the injury to Sankavi Rathan, and when that injury took place. Dr. Allen testified that Sankavi’s large birth weight meant she had greater muscle mass, rendering her brachial plexus more resistant to propulsive forces, requiring great exogenous force such as physician-applied traction to cause the avulsions. Dr. Allen also drew attention to the fact that Vasanthy was exhausted and had pushed for 84 minutes before Sankavi’s head was delivered. Therefore, Dr. Allen opined, the Defendant’s in utero forces theory did not hold much weight because Vasanthy’s maternal forces would be insufficient to cause Sankavi’s injury if Vasanthy was exhausted.
DEFENDANT’S EXPERT EVIDENCE
Dr. Robert Gratton was accepted by the court as an expert in the field of Obstetrics and Maternal Fetal Medicine. He was qualified to provide opinion evidence on the standard of care expected of an obstetrician practicing in Canada in 2009. In the context of Dr. Scheufler’s delivery note where he records that he used “gentle downward traction,” Dr. Gratton told the court that “axial” traction is the same as “gentle” traction. Dr. Gratton and Dr. Scheufler spoke before the finalization of Dr. Gratton’s expert report to “clarify” that the “downward traction” recorded in the Dr. Scheufler’s note was, to be more clear, “axial downward traction”. Dr. Gratton himself gave evidence that he had become apprised of the term “axial downward traction” by reading a bulletin published in 2017, eight years after Sankavi’s birth. Emery J. seemed suspicious of this clarification. To support the notion that a mother’s forces alone are enough to tear multiple nerves from a baby’s spinal cord, Dr. Gratton regaled the court with what he called “lines of evidence” in the form of scientific articles that show a permanent brachial plexus injury can occur in the absence of shoulder dystocia. He attributed Sankavi’s injuries to the fact that she was a larger baby who required more maneuvers to free the shoulder. Dr. Gratton testified that there are multiple forces at play during a birth, and that brachial plexus injuries cannot be attributed to excessive lateral traction alone.
Dr. Zaltz was called by Dr. Scheufler as the second obstetrician to give evidence on the standard of care expected of an obstetrician delivering a baby in similar circumstances. Emery J. qualified Dr. Zaltz as an expert in obstetrics to give opinion evidence of the standard of care expected of an obstetrician practicing in Canada in 2009, and in particular the management of shoulder dystocia and on the cause of BPI. Dr. Zaltz testified that Dr. Scheufler had completed up to date training, as of 2009, in the management of shoulder dystocia and that the steps taken by Dr. Scheufler in Sankavi’s delivery conformed to this training.
Dr. Scheufler called Dr. Michele Grimm to give evidence as a bio-medical engineer on causation. She was qualified as an expert in the field of bio-medical engineering to provide opinion evidence about the causation of birth related BPI and the cause of Sankavi’s BPI in this case. Dr. Grimm testified that Sankavi’s injury was caused by the stretch of her nerves. This stretch, Dr. Grimm said, was caused by differential motion between Sankavi’s head and torso when her shoulder came into contact with her mother’s pubic bone, while being propelled by maternal expulsive forces. Dr. Grimm says these forces, alone or in combination with the tractive forces applied by Dr. Scheufler, were sufficient to cause Sankavi’s injury. Dr. Grimm relied on her own computer simulation research that used strain measurements from adult rats and piglet fetuses to form her opinion.
Emery J. did not believe that Dr. Gratton or Dr. Zaltz offered significant evidence as to the alternate cause of the mechanism of injury. Instead, he found that most of the evidence supporting the Defendant’s theory of the injury was provided by Dr. Grimm. However, Dr. Grimm failed to consider the fact that Dr. Allen alerted the court to, that Vasanthy had been pushing for 84 minutes before Dr. Scheufler attended to deliver Sankavi. Dr. Grimm failed to consider the impact of this exhaustion on Vasanthy’s ability to provide sufficient maternal force to cause any injury to Sankavi.
Many of the scientific articles referred to by the Defence experts spoke of less-severe brachial plexus injuries than the one Sankavi suffered, and Emery J. reduced the weight he gave to the evidence of those experts in regard to that literature.
ANALYSIS
The obstetrical experts called by both parties who opined on the standard of care agreed that the standard of care of an obstetrician confronted with shoulder dystocia is to call for help, use no more than gentle axial traction on the baby’s head, and proceed with release and rotational maneuvers. They also agreed that more than gentle, downward, lateral traction on the baby’s head towards the floor during a shoulder dystocia delivery is conduct that falls below the standard of care. “More than gentle traction” was agreed to mean more than diagnostic traction or more than the traction used for a normal vaginal birth without shoulder dystocia.
The Plaintiffs agreed with the evidence of Dr. Zaltz that “no one would take exception to the fact that if you pull too hard in the wrong direction you will get an injury.” Dr. Zaltz also described how the correct amount of traction to apply came down to “feel”, based on experience that has deepened to instinct. The Plaintiffs referred the court to a reference from Armstrong v. Ward, 2019 ONCA 963 that “there is a difference between using the appropriate technique and executing it properly.”
Recognizing that proof of causation is often difficult for the patient, and the physician is usually in a better position to know the cause of the injury, Emery J. reminded the parties that inferences can be drawn from circumstantial evidence to support a finding of negligence. In keeping with Armstrong v. Ward, 2021 SCC 1, it falls to the defendant to offer evidence and explanation to negate that inference. Both parties agreed that the Armstrong approach to causation is applicable in certain circumstances, and that the trial judge is entitled to take a robust and pragmatic approach to the totality of the evidence to determine whether the Plaintiff has established causation on the balance of probabilities.
Emery J. found the evidence established the foundation of the Plaintiffs’ case. One important fact was the extent and severity of Sankavi’s brachial plexus injury, which spanned her full brachial plexus with nerve roots C6-T1 entirely avulsed. As for the C5 nerve root neuroma, Dr. Clarke spoke about how this injury was likely from traction. Dr. Scheufler himself documented that he may have used gentle traction more than for a diagnostic reason after shoulder dystocia was identified.
Emery J. did not find Dr. Scheufler’s delivery notes to be exhaustive. There was more to the story than what was documented in the medical records. At his examination for discovery, Dr. Scheufler admitted that through an error, the delivery notes state that Sankavi was delivered in a right occiput anterior position when in fact she was delivered in a left occiput anterior position. At his examination for discovery, Dr. Scheufler also stated that he could not recall how many times he attempted to deliver Sankavi with gentle downward traction. Yet, in his delivery notes, Dr. Scheufler only mentioned one instance of gentle downward traction. Emery J. was also moved by how Dr. Scheufler dictated his note with marked haste, only 23 minutes after the birth.
Evidence also established that Sankavi’s delivery was not a medical emergency where she was in danger of being deprived of oxygen and where life-saving measures were required. There was no impetus to depart from the standard of gentle axial traction.
While Dr. Scheufler had always maintained that the fact Sankavi was a large baby at birth contributed to the incidence of the shoulder dystocia and resultant brachial plexus injury, Emery J. did not accept this as a contributing factor because according to Dr. Scheufler’s delivery notes, Dr. Scheufler had unsuccessfully attempted to turn Sankavi’s body approximately an hour before her birth, and found that there was sufficient room in the pelvic cavity for her delivery at the time. Emery J. also relied on Dr. Clarke’s evidence that he did not have any evidence of the size of a baby born in a shoulder dystocia situation contributing to the severity of brachial plexus injury, and the evidence given by Dr. Allen that the larger the baby, the more muscle mass the baby has to withstand maternal forces.
Emery J. found that Dr. Scheufler’s evidence failed to negate the causal inference he was able to draw from the evidence given surrounding Sankavi’s birth that Dr. Scheufler applied greater than gentle traction. Emery J. found on the balance of probabilities that Dr. Scheufler fell below the standard of care owed by an obstetrician in 2009 when he applied greater than gentle traction to Sankavi’s head with downward traction one or more times before, or after identifying shoulder dystocia, or at the wrong angle during the delivery. In tow, Emery J. found it more probable than not that Dr. Scheufler caused or materially contributed to Sankavi’s injury by his application of greater than gentle traction.
DAMAGES
Damages of $811,564 were awarded.
Sankavi was awarded general damages of $225,000. These damages account for her pain and suffering, and they reflect that Sankavi is aware of the effect of her brachial plexus injury on her life, and what her life could have been like but for her injury. Further, Sankavi has suffered the inability to participate in many cultural and personal activities because of the limited use she is able to make of her arm. Despite this, Emery J. described Sankavi as “amazingly resilient”, and she has even gone on to achieve a one-handed Rubik’s cube world record performed while hula-hooping.
Family Law Act damages were awarded to Vasanthy (Sankavi’s mother) for $37,500, Rathan (Sankavi’s father) for $12,500, and Ragavi (Sankavi’s sister) for $10,000 to reflect the loss of Sankavi’s care, guidance, and companionship that she would have extended to her family but for her injury.
To compensate Sankavi for the future costs related to her care, Sankavi was awarded $391,593, with the majority of that amount directed towards the support, medical, and rehabilitation services that Sankavi will require throughout her lifetime.
Sankavi was awarded $134,971 for future loss of income. While defence economist Douglas Hyatt provided evidence that historically, women have earned less than men, he admitted in cross-examination that the gregarious and ambitious Sankavi has the potential to earn the same as a man. Emery J. found it appropriate for the court to consider the without injury earnings Sankavi would likely have earned but for the injury using gender-neutral earnings. This finding fit hand-in-glove amongst the background of a set of accomplished Plaintiffs’ and Defendant’s trial counsel that was comprised mostly of women.
OHIP subrogated damages were awarded in the amount of $90,000.
Learn more about the author: James Roos
