Miller et al v Dow et al: Fetal Monitoring Standards, the Level-of-Hospital Question, and Causation in a Birth Injury Death Case

Jordan Miller was born on March 4, 1998 at the Carleton Memorial Hospital in Woodstock, New Brunswick. He was born not breathing. He required urgent resuscitation. He suffered oxygen deprivation that caused hypoxic ischemic encephalopathy and severe, permanent neurological damage. He had cerebral palsy. He could not walk, stand, sit up, hold his head up, roll over, see, speak, or communicate in any way. He was completely dependent on others for his entire life. He died on September 19, 2010. He was twelve years old.

His parents, Susan and Michael Miller, believed that the family physician who managed Susan Miller’s labour and delivery, Dr. Heather Dow, was responsible. Their claim, filed in 2000 and tried in 2016, raised fundamental questions about what standard of care applies to a family physician doing obstetrics in a small rural New Brunswick hospital in 1998, how courts should evaluate divergent expert opinion about fetal heart monitoring strips, and whether causation can be established when the precise trigger of a birth injury may never be known.

The Parties and the Clinical History

Susan Miller had an uneventful pregnancy. Her family physician was Dr. Rosanne Goodine. On the morning of March 4, 1998, Ms. Miller’s contractions were approximately five minutes apart, her water broke, and she and her husband Michael proceeded to the emergency department at Carleton Memorial Hospital in Woodstock. She was admitted and labour appeared to be progressing well. Dr. Goodine was just completing her shift when Ms. Miller arrived; Dr. Heather Dow took over the patients in labour and delivery.

Dr. Dow was a family physician. Carleton Memorial Hospital in Woodstock was a small community hospital, what the evidence described as a level one facility. There was no specialist obstetrician; the obstetrics service was provided by family physicians with obstetrical privileges. Neither an immediate surgical team nor a standing anaesthesiological team was on call in the manner of a tertiary care hospital.

Ms. Miller did not see very much of Dr. Dow during the next few hours of labour. Dr. Dow checked on her periodically. When Jordan was delivered, Ms. Miller immediately knew something was wrong. Jordan was transferred to the neonatal intensive care unit (NICU) at the Doctor Everett Chalmers Hospital (DECH) in Fredericton. Susan Miller, also admitted to the DECH following the delivery, did not meet her son until March 5. A note on Jordan’s NICU bed read “meconium aspiration.” A pediatrician, Dr. MacDougal, told the Millers that Jordan may have sustained significant brain damage. A definitive diagnosis of severe cerebral palsy came later, from Dr. Meek in Saint John.

Jordan was also clinically blind, a cortical issue identified at the IWK in Halifax. He experienced seizures managed under the care of Dr. Meek. He had surgery for hip abduction, dental surgery, casts on his legs, and a major scoliosis surgery in 2008 in which rods were inserted along his vertebrae. He was impossible for most respite workers to manage safely because his G-tube feeding and suction requirements exceeded their training.

The Millers moved from Woodstock to Fredericton when Jordan was approximately four to six months old to access greater resources. Michael Miller worked the permanent night shift at the Crown Plaza in Fredericton so he could help Susan with Jordan’s care during daytime hours. Susan Miller provided Jordan’s care with extraordinary dedication. She died caring for him around the clock, rarely sleeping through the night for the first years of his life. After Jordan’s death in 2010, she began providing care and respite services for other disabled children, work she described as the best way to honour Jordan’s life and memory.

The Defendants Who Did Not Go to Trial

The statement of claim named Dr. Dow, Dr. A. Wayne McLaughlin (another physician involved in Jordan’s care at or around delivery), Elva Fewer (a nurse), the Carleton Memorial Hospital, and Region 3 Hospital Corporation. Just before trial commenced in September 2016, Elva Fewer, the Carleton Memorial Hospital, and Region 3 Hospital Corporation settled with the Millers and filed a notice of discontinuance. Dr. McLaughlin’s claim had also been resolved prior to trial. By the time Clendening J. heard the evidence, the only remaining defendant was Dr. Heather Dow.

The Allegations Against Dr. Dow

The particulars of negligence against Dr. Dow included: failing to properly and adequately monitor the progress of Susan Miller’s labour and delivery, resulting in failure to detect fetal distress prior to delivery; failing to supervise and monitor the nursing staff; failing to act as a reasonable and properly skilled medical practitioner would in the circumstances; failing to order a Caesarean section when Susan Miller’s labour failed to progress as a reasonably skilled physician would have ordered; failing to take other necessary steps to advance the progress of labour or extricate Jordan from the birth canal; failing to comply with applicable policies, standards, and regulations at Carleton Memorial; allowing or causing a hypoxic ischemic event resulting in metabolic insult to Jordan just prior to delivery; failing to assess and diagnose the critical nature of Jordan’s condition prior to and upon birth; and failing to properly and adequately monitor, assess, and document the progress of Susan Miller’s pregnancy, labour, and delivery.

The Expert Evidence

For the Plaintiffs

Dr. John Barrett, a specialist in Maternal-Fetal Medicine at Sunnybrook Health Sciences Centre in Toronto and an associate professor of obstetrics and gynaecology at the University of Toronto, was the plaintiffs’ primary standard of care expert. His central criticism was the absence of continuous and contiguous measurement of uterine activity (tocography, the measurement of contraction timing and character using a tocometer or TOCO monitor) during Susan Miller’s labour. He identified three compounding failures: the running speed of the fetal cardiotocograph paper (at one centimetre per minute, which compressed the tracings and made prolonged, potentially late decelerations appear as short, V-shaped, benign-looking dips); the absence of continuous uterine activity measurement by tocometry; and the absence of internal electronic fetal monitoring (a fetal scalp electrode) at the point when fetal tachycardia and baseline changes began appearing.

Dr. Barrett explained why tocometry mattered so acutely in this specific clinical setting. Without continuous recording of uterine contractions, it is impossible to determine whether decelerations in the fetal heart rate are occurring in relationship to contractions; that is, whether there is a “late component” to the deceleration, which is strongly associated with fetal acidosis. If you cannot see the contraction pattern and the fetal heart rate on the same continuous trace, you cannot reliably classify the decelerations as variable (generally less concerning) or late (serious indicator of uteroplacental insufficiency). The paper speed problem compounded this: the one-centimetre-per-minute speed condensed what were in reality prolonged, potentially late decelerations into shapes that appeared more benign on the trace than they actually were.

Dr. Barrett also pointed to the Oxytocin augmentation as a critical contextual factor. Oxytocin increases the frequency and strength of contractions. This can compress the recovery time available between contractions for fetal oxygen transfer. When Oxytocin is in use, the need for continuous fetal heart monitoring and tocometry is heightened, not relaxed. He concluded that the absence of continuous fetal heart monitoring while Oxytocin was being administered was below the standard of obstetric care, applicable at any hospital regardless of its level.

Despite his strong criticism of the monitoring failures, Dr. Barrett himself acknowledged a critical concession on causation: he was asked whether the breach caused the metabolic acidosis and his answer was that he did not think the breach caused the metabolic acidosis itself; rather, the failure to respond to the signs of metabolic acidosis was what was responsible. And on the question of whether a Caesarean section could have saved Jordan at the point where non-reassuring fetal heart tracings appeared (approximately 40 to 58 minutes before delivery, on his own evidence), he conceded that at a small community hospital there would not have been sufficient time to call in a surgeon and an anaesthesiologist before delivery was completed.

Dr. David Meek, a paediatric neurologist who first saw Jordan at eleven months of age, provided evidence that Jordan had suffered a severe metabolic insult around the time of birth, producing severe acidotic encephalopathy as well as transient renal dysfunction, and that the cerebral palsy was likely the result of that metabolic insult.

The discharge summary prepared by Dr. Bullied reported that Jordan had suffered in utero hypoxia and acidemia with resultant hypoxic ischemic encephalopathy in the neonatal period.

For Dr. Dow

The defence called three experts, all of whom concluded that Dr. Dow had met the standard of care.

Dr. Dorothy Dolhanty, an obstetrician and gynaecologist with over twenty years of experience in both the United States and Canada and experience in small community practices, reviewed the fetal heart monitoring strips and concluded that the only concerning period was from approximately 7:00 to 8:00 p.m., when the fetal heart rate baseline rose to 160 with accelerations to 180. In her opinion, this elevated baseline coincided with Susan Miller’s temperature elevation to 37.5°C (a mildly elevated temperature) and resolved by 8:30 p.m. with the baseline returning to approximately 150. She opined that there was no indication at any point that Jordan was in distress and that any period of fetal tachycardia was attributable to the maternal temperature, which responded quickly to antibiotics. She also testified that the absence of tocography was of no consequence when the physician remains in the delivery room continuously throughout the second stage, because contractions can be assessed visually and by palpation.

Dr. Brian Davidson, a family physician at the Moncton City Hospital, reviewed all available records including prenatal records, chart notes, nursing notes, the partogram, fetal monitoring strips, transfer notes, pathology reports, blood reports, and specialist consultations. He agreed with Dr. Dolhanty on the significance (or rather, the lack thereof) of the baseline variability changes and the fetal tachycardia observed during the labour. He characterized the periods of concern as episodes that resolve themselves countless times in obstetric practice. He also acknowledged that tocometer monitoring is indicated when Oxytocin augmentation is in use and that a doctor should use all the tools available to ensure a safe delivery. He nonetheless concluded that Dr. Dow provided appropriate care.

Dr. Helen Sandland, an obstetrician and gynaecologist who had completed her residency in 1989 and worked in both Canada and the United States (with an active licence at the time only in Nova Scotia), testified that no standard mandated continuous electronic fetal monitoring for a low-risk patient. Intermittent manual auscultation was an acceptable form of assessment for a patient initially classified as low risk. She agreed with Dr. Dolhanty that the absence of tocography was of no consequence when the physician was continuously present in the delivery room and could assess contractions by other means. She also acknowledged, along with Dr. Davidson, that when someone is on Oxytocin there should be continuous monitoring. She concluded that Dr. Dow’s care was within the standard of a reasonably prudent physician.

The Court’s Analysis and Decision

The Standard of Care Framework

Clendening J. applied the standard of care formulation from Picard and Robertson, Legal Liability of Doctors in Hospitals in Canada: a reasonable practitioner considering all the circumstances. She acknowledged the three foundational principles that most medical malpractice cases share: the standard is not one of perfection; the judge must avoid assessing the doctor’s conduct with the benefit of hindsight; and the doctor must exercise the degree of care and skill reasonably expected of a normal, prudent practitioner of the same experience and standing. She cited Crits v Sylvester, ter Neuzen v Korn, and Ferguson v Steel for these propositions, and quoted from Taylor v Morrison for the proposition that a doctor’s honest and intelligent exercise of judgment will satisfy the standard of care, though an error of judgment, depending on the circumstances, may still constitute negligence.

The standard applied was explicitly that of “a reasonably prudent family physician in 1998”, not an obstetrician. Dr. Dow was a general practitioner with obstetrical privileges at a small community hospital. The applicable standard therefore incorporated the context of a level one facility, the absence of specialist support, and the clinical resources and training available to a competent family physician doing obstetrics at that time and place.

The Decision on Negligence

Clendening J. found that Dr. Dow’s actions or inactions did not constitute a breach of the standard of care. The evidence did not, on a balance of probabilities, support the allegations pleaded. There was no evidence of improper or inadequate monitoring of the progress of labour resulting in a failure to detect fetal distress prior to delivery. There was no evidence that Dr. Dow failed to supervise the nursing staff. There was no evidence that Dr. Dow responded inconsistently with a properly skilled general practitioner in the same circumstances.

On the Caesarean section allegation, the court found it was not supported by the evidence. The decisive point was Dr. Barrett’s own concession: whatever non-reassuring fetal heart rate tracings appeared, they appeared only in the 40 to 58 minutes before delivery; and at a small community hospital without standing surgical and anaesthesiological support, a Caesarean section could not have been completed before delivery in any event.

On the tocometry question (the nurses’ failure to use the tocometer in breach of hospital policy), the court noted the evidence. Nurse Fewer testified that she could not understand why she did not use the tocometer and was surprised, a month after the birth, to learn it had not been on during the labour. The tocometer’s absence was a departure from hospital protocol. But the court found this did not impact on Dr. Dow’s responsibility. The two defence gynaecologists had testified convincingly that a physician continuously present in the delivery room during the second stage can assess contractions by observation and palpation without the tocometer.

The court also observed the weight of expert opinion: three doctors, two gynaecologists and one general practitioner, agreed that Dr. Dow’s course of action was appropriate and that the fetal monitoring strips did not require a different course of action. In the face of conflicting expert opinion about the interpretation of fetal heart monitoring strips, Clendening J. quoted Fairley v Waterman, 2002 BCSC 10, for the legal recognition that specialists rarely interpret the same fetal heart strip in the same fashion, and that the question in such cases is whether the interpretation of the strips suggests that actions should or should not have been taken.

On causation, the court was brief but decisive: the evidence did not support a finding that Dr. Dow’s conduct caused Jordan’s injuries; the evidence on causation was inconclusive; and it may never be known what actually caused Jordan’s injuries. Even though courts have held that the precise manner of causation is not mandatory to establish, there must be some evidence to support a causal link, and the evidence offered here was insufficient to discharge the plaintiffs’ burden on a balance of probabilities.

The claim was dismissed with costs under Rule 59, Tariff A, Scale 3 of the New Brunswick Rules of Court, with all allowable disbursements and interest at 3% both pre- and post-judgment where allowable.

The Provisional Damages Assessment

Notwithstanding the dismissal of the claim, Clendening J. was required to assess damages provisionally in the event of appellate reversal. Because Jordan had died, the claim was governed by both the Fatal Accidents Act, RSNB 2012, c 104 and the Survival of Actions Act, RSNB 2011, c 227. The Fatal Accidents Act provides for claims by certain defined third parties where death is caused by a wrongful act, neglect, or default; the Survival of Actions Act provides that personal injury actions survive death whether for the benefit of or against the deceased’s estate.

The Competing Vocational-Rehabilitation Evidence

Two vocational and rehabilitation experts addressed the cost of Jordan’s care and the income losses of his parents. Mark McGovern (qualified as a rehabilitation, vocational, and cost of care specialist) testified for the plaintiffs. Sean FitzGerald (qualified as a vocational-rehabilitation expert) testified for the defence.

The court preferred FitzGerald’s methodology over McGovern’s for several reasons. First, McGovern did not factor in the hours Jordan’s parents would have spent on ordinary parental care even if Jordan had not been injured, treating all of Susan Miller’s caregiving time as compensable. Second, McGovern did not acknowledge the respite care funding provided by the Department of Social Development. Third, McGovern’s assumption that Susan Miller would have obtained full-time employment within two years after Jordan’s birth was not supported by her actual work history before the pregnancy or the choices she made after Jordan’s death. She had worked seasonally at minimum wage before Jordan was born and, six years after his death, continued to do part-time care work for disabled children rather than full-time employment. FitzGerald assessed her income loss based on what the evidence actually supported (seasonal minimum wage employment), producing a past income loss figure of $82,368 for the period 1998 to 2012. For Mr. Miller, FitzGerald found no income loss at any period.

The court also accepted FitzGerald’s position that claiming both the full cost of Susan Miller’s care time (as a quantified hourly service) and separately claiming her income loss for the same hours constituted double-counting. A caregiver cannot receive both the market value of the caregiving services she provides and compensation for the employment income she forgoes to provide them; the two heads of loss represent the same time valued in two different ways, and only one can be recovered. The court cited MacKinlay v MacEachern (1983) 1983 CanLII 5220 (NS SC) in support.

The Provisional Award

The provisional damages reflected the losses flowing from Jordan’s catastrophic injuries and subsequent death. The award included costs of care actually incurred for Jordan during his life and subrogated claims from the provincial health system and social services:

Cost of Care for Jordan: $431,050. Medicare (Subrogation), less interest: $747,215.30. Social Services (Subrogation), less interest: $238,489.30. Funeral expenses (actual funeral costs, flowers, and reception): $3,077.35. Loss of Companionship and Grief (Fatal Accidents Act): $41,715.49. Total: $1,461,547.44.

No income loss was awarded for either Michael or Susan Miller. The agreed amounts for funeral expenses and loss of companionship and grief under the Fatal Accidents Act were incorporated without adjustment, the parties having agreed to the quantum on those items.

What Miller v Dow Establishes

Principle One: The Standard for a Family Physician Doing Obstetrics in a Small Rural Hospital

Miller v Dow is a clear illustration of the contextual application of the “reasonable practitioner” standard in Canadian medical malpractice law. Dr. Dow was not an obstetrician or gynaecologist. She was a family physician with obstetrical privileges at a level one community hospital. The standard she was held to was that of a “reasonably prudent family physician” in 1998, not the standard of a maternal-fetal medicine specialist or a level three hospital obstetrician.

This matters because of what Dr. Barrett said when asked whether fetal monitoring standards vary across hospital levels: he maintained there is no difference. Basic fetal heart rate monitoring applies universally wherever fetal monitoring is carried out. The court did not explicitly resolve this tension; it found against the plaintiffs on the evidence without needing to rule definitively that the level one hospital context lowered the applicable monitoring standard. But the court’s observation that if Susan Miller had been in a tertiary care hospital with immediately available surgical and anaesthesiological support the outcome “might have been different” (coupled with its ultimate finding that Dr. Dow met the standard) implicitly acknowledges that the level of institutional support is a contextual factor relevant to what a reasonable physician in that position could be expected to achieve.

Principle Two: Divergent Expert Interpretation of Fetal Heart Monitoring Strips

The court’s citation of Fairley v Waterman (that specialists rarely interpret the same fetal heart strip in the same fashion) reflects a well-established feature of birth injury litigation that practitioners must understand. The interpretation of fetal heart rate tracings is not a mechanical exercise with a single correct answer. Variable decelerations, late decelerations, baseline variability, tachycardia, accelerations, and their relationships to contractions are assessed through a combination of clinical experience, training, and judgment. Experienced, qualified obstetricians can and regularly do disagree on whether a given trace was reassuring or non-reassuring, whether it called for intervention, and whether the intervention available in a given setting could have made a difference.

In birth injury cases where the plaintiffs call a highly credentialled specialist critical of monitoring practices and the defence calls experienced practitioners who reviewed the same tracings and found them acceptable, the outcome will often turn on whose interpretation the trial judge finds more persuasive. In Miller v Dow, three of the four expert physicians who reviewed the tracings found them acceptable given the clinical context. The fourth, the plaintiffs’ expert, was a renowned MFM specialist whose opinion was partly dependent on the assumption that better monitoring tools would have revealed more concerning information.

This case reinforces for plaintiffs’ counsel the importance of ensuring their expert evidence establishes not only what information better monitoring would have provided, but what a physician with that information would have done differently, and whether that intervention would have produced a better outcome in the specific institutional setting where the delivery occurred.

Principle Three: Hospital Protocol and the Physician’s Responsibility

One of the most striking factual elements in Miller v Dow is the nurse’s testimony: Elva Fewer could not understand why she did not use the tocometer. The tocometer was hospital policy. It was not used. Yet the court found this did not affect Dr. Dow’s responsibility. The defence experts explained why: when the physician is continuously present in the delivery room during the second stage of labour, contractions can be assessed without the machine. The machine records what a physician present in the room can observe.

The broader principle here is that a failure of a nursing protocol does not automatically establish physician negligence. A physician must be independently negligent in their own conduct, not merely the beneficiary of proper nursing support that was absent. If the physician could have discharged their monitoring obligations through their own presence and assessment, the failure of nursing staff to activate a machine does not transform the physician’s management into a breach. This principle does not immunize physicians from liability for failures in their supervision or delegation responsibilities, but it does distinguish cases where a physician’s own clinical assessment was adequate from cases where a physician relied on monitoring that was simply not occurring.

Principle Four: The Causation Problem in Fetal Heart Monitoring Cases

Dr. Barrett’s causation evidence in Miller v Dow illustrates a recurring challenge in birth injury litigation: the difficulty of distinguishing between what caused the underlying metabolic acidosis and what caused the failure to detect and respond to it. Dr. Barrett was explicit: he did not think the breach caused the metabolic acidosis itself. He thought the failure to respond to the signs of metabolic acidosis was responsible for the harm. This is causation by omission: a failure to act at the right time in response to warning signs that, had they been identified, might have enabled an intervention that could have prevented the worst outcome.

But even this causation theory ran into Dr. Barrett’s own concession: in the specific clinical setting of Carleton Memorial Hospital in 1998, a Caesarean section could not have been completed before delivery in any event. The intervention that might have saved Jordan required institutional resources that simply were not available in time at that hospital, in that moment. This is causation by context: where the breach may have been real, but the harm was not preventable given the constraints of the actual setting rather than an idealised one.

The court’s causation finding was brief. It noted that the evidence of causation was inconclusive and that “it may never be known what actually caused Jordan’s injury.” This acknowledges the fundamental epistemological difficulty in many birth injury cases: hypoxic ischemic encephalopathy occurs as the cumulative result of events during a compressed period of time, those events are often not fully recorded, and after the fact it may be impossible to determine precisely what happened in the minutes that mattered most.

Principle Five: The Double-Counting Prohibition in Cost of Care and Loss of Income Claims

The court’s acceptance of FitzGerald’s position on double-counting (that a caregiver parent cannot claim both the full market value of caregiving services and income loss for the same hours) is a principle of general application in serious injury and death cases involving parental care. When a parent provides nursing and caregiving services that would otherwise need to be purchased in the market, the claim for those services has a market equivalent value. The same hours cannot also be claimed as lost employment income. The parent has lost income, or provided services worth a market value, but not both, for the same time. Counsel in cases involving substantial parental care must be careful to elect the appropriate head of claim and avoid presenting hours twice under different labels.

Miller v Dow in the New Brunswick and Birth Injury Series

Miller v Dow is one of two New Brunswick decisions in the Acuity Medical Law case law series, alongside Mazerall v Nightingale (1991 NBCA) and Guimond v Guimond Estate (1996 NBCA), which addressed the Fatal Accidents Act in the context of wrongful death claims more broadly. The birth injury context of Miller v Dow links it to the other birth injury cases in the series: KS v Willox (2018 ABCA 271 — https://canlii.ca/t/htrbz, Cheung v Samra (2022 ONCA 195 — https://canlii.ca/t/jmzv5, Dudas v Munro (1997 BCSC, https://canlii.ca/t/1f43v, and Bailey v Young (2022 NSSC).

It is cited in both the Birth Injury Claims Guide and the General Medical Malpractice Claims Guide in this series for its treatment of fetal monitoring standards in a rural community hospital setting, the expert disagreement framework in strip-interpretation cases, and the New Brunswick statutory framework for birth injury death claims under the Fatal Accidents Act and Survival of Actions Act.

Quick Reference: Miller et al v Dow et al

Case Details

• Miller et al v. Dow et al, 2017 NBQB 35 (CanLII) — https://canlii.ca/t/gxr6l | Files: FC-112-2000 and FM-59-2016 | Clendening J. | Heard: September–October 2016 (18 days) | Decision: February 27, 2017
• Court of Queen’s Bench of New Brunswick, Trial Division, Judicial District of Fredericton
• Outcome: Action dismissed; standard of care not breached; provisional damages $1,461,547.44

The Parties

• Plaintiff: Jordan Miller (born March 4, 1998; died September 19, 2010, aged 12), by estate administrator Susan Miller, and Susan and Michael Miller personally
• Defendant at trial: Dr. Heather L. Dow, family physician with obstetrical privileges at Carleton Memorial Hospital, Woodstock, New Brunswick
• Settled before trial: Dr. A. Wayne McLaughlin, Elva Fewer (nurse), Carleton Memorial Hospital, Region 3 Hospital Corporation

Jordan Miller’s Injuries

• Born not breathing March 4, 1998 at Carleton Memorial Hospital, Woodstock, NB
• Oxygen deprivation → hypoxic ischemic encephalopathy → severe permanent neurological impairment
• Cerebral palsy: could not walk, stand, sit up, hold his head up, roll over, see, speak, or communicate
• Clinically blind (cortical issue), seizures (under Dr. Meek in Saint John)
• Multiple surgeries: hip abduction, dental, leg casts, scoliosis with rod insertion (2008)
• Completely dependent on others for entire life; died September 19, 2010

The Experts

• Dr. John Barrett (MFM specialist, Sunnybrook/UofT), BREACH: absent tocometry, slow paper speed, absent continuous EFM, Oxytocin without continuous monitoring; BUT conceded C-section not achievable in time at that hospital
• Dr. Dorothy Dolhanty (OB/GYN), NO BREACH: fetal tachycardia explained by maternal temperature; tracings acceptable; absence of tocometry not critical when physician continuously present
• Dr. Brian Davidson (family physician), NO BREACH: agreed tocometry required with Oxytocin but concluded Dr. Dow provided appropriate care
• Dr. Helen Sandland (OB/GYN), NO BREACH: intermittent auscultation acceptable for low-risk patients; absence of tocometry not critical with continuous physician presence; agreed Oxytocin requires continuous monitoring

Why the Action Was Dismissed

• Three of four expert physicians found Dr. Dow’s management acceptable; Dr. Barrett was the sole critic
• Non-reassuring FHR tracings appeared at most 40–58 minutes before delivery (Dr. Barrett’s own evidence)
• Even Dr. Barrett conceded that at a small community hospital with no standing surgical/anaesthetic team, a C-section could not have been completed before delivery in any event
• Absence of tocometry did not affect Dr. Dow’s responsibility because she was present in the delivery room and could assess contractions clinically
• Causation evidence inconclusive: “it may never be known what actually caused Jordan’s injury”

The Provisional Damages

• Cost of Care for Jordan: $431,050
• Medicare (Subrogation, less interest): $747,215.30
• Social Services (Subrogation, less interest): $238,489.30
• Funeral Expenses: $3,077.35
• Loss of Companionship and Grief (Fatal Accidents Act): $41,715.49
• Total: $1,461,547.44
• No income loss for either Michael or Susan Miller; double-counting of caregiving time and lost income not permitted

Key Legal Principles

• The applicable standard for a family physician with obstetrical privileges at a small community hospital is that of a “reasonably prudent family physician” in the relevant year, not a specialist standard
• Experts frequently disagree on the interpretation of fetal heart monitoring strips, and this is judicially recognized as an inherent feature of birth injury cases (citing Fairley v Waterman, 2002 BCSC 10)
• A nursing protocol failure (not activating the tocometer) does not automatically establish physician negligence where the physician’s own continuous presence in the delivery room satisfied their clinical monitoring obligation
• Causation by omission in birth injury cases requires establishing not only what different monitoring would have revealed but what intervention was feasible in the specific institutional setting, and whether that intervention would have made a material difference in the time available
• Caregiver parents cannot claim both the full market value of caregiving services and separately claim income loss for the same hours; only one of these heads of loss can be recovered for the same time (MacKinlay v MacEachern (1983) 1983 CanLII 5220 (NS SC))
• Governing legislation in New Brunswick death cases: Fatal Accidents Act, RSNB 2012, c 104 (third-party claimants where death caused by wrongful act); Survival of Actions Act, RSNB 2011, c 227 (personal injury actions survive death)

Key Cases Referenced

• Crits v Sylvester, [1956] SCR 991 — standard of care is that of the normal, prudent practitioner; article in this series
• Ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 3 SCR 674 — https://canlii.ca/t/1frhk — professional standard assessed at time of events; article in this series
• Fairley v Waterman, 2002 BCSC 10 (CanLII) — specialists rarely interpret the same fetal heart strip in the same fashion; interpretation drives the question of what actions should have been taken
• Taylor v Morrison, 2006 CanLII 24462 (ON SC) — applying standard of care to particular circumstances; error of judgment may or may not be negligence depending on circumstances
• MacKinlay v MacEachern (1983) 1983 CanLII 5220 (NS SC) — double-counting of caregiving time and lost income not permitted

Related Cases in This Series

• KS v Willox, 2018 ABCA 271 — https://canlii.ca/t/htrbz — obstetric malpractice; birth injury causation; standard of care for rural GP; action dismissed; article in this series
• Cheung v Samra, 2022 ONCA 195 — https://canlii.ca/t/jmzv5 — birth injury; failure to advance delivery; $14.9M judgment restored; article in this series
• Dudas v Munro, 1997 BCSC — https://canlii.ca/t/1f43v — obstetric malpractice; premature birth; feto-maternal hemorrhage; action dismissed; article in this series
• Mazerall v Nightingale, 1991 NBCA — New Brunswick; Fatal Accidents Act; article in this series
• Guimond v Guimond Estate, 1996 NBCA — New Brunswick; wrongful death; Fatal Accidents Act; article in this series
• Bailey v Young, 2022 NSSC — birth injury; obstetrical malpractice; article forthcoming in this series