Suwary v Librach: Occult Cord Prolapse, Operative Vaginal Delivery, and Causation Where the Insult Preceded the Intervention

Robert Suwary was born on January 29, 1999, at Women’s College Hospital in Toronto. He arrived in the world with no detectable heart rate. He began to breathe six minutes after delivery. His Apgar score was 0. The acute near total interruption in blood supply to his brain during the minutes of his birth left him with one of the most severe forms of cerebral palsy, affecting his entire body: cognitive and communication delays, learning disabilities, limited expressive speech, articulation difficulties, and feeding and swallowing challenges.

The cause of the injury was an occult cord prolapse: the umbilical cord had fallen beside the fetal head rather than remaining around the fetus’s midsection, was caught between the head and the uterine wall, and was being compressed. Because the prolapse was occult (hidden), no physical examination could reveal it.

The plaintiffs argued that the obstetrician who managed the labour and delivery, Dr. Clifford Librach, had unnecessarily prolonged Robert’s birth by proceeding with a vacuum-assisted delivery that failed, causing irreversible brain damage. Dr. Librach maintained that Robert’s injuries were caused by an unpredictable cord prolapse that he could not have diagnosed or prevented, and that his management fell within accepted standards of practice throughout.

What followed was not one trial but two. The case was tried for 38 days before one judge and dismissed in 2009. The Court of Appeal found that judge had made inconsistent findings of fact about what was said, done, and heard in the delivery room and ordered a retrial on Dr. Librach’s liability. The retrial, 28 days of evidence before Whitaker J., produced the same result: the claim was dismissed.

The Parties, the Pregnancy, and the Procedural Background

Kimberly Long-Suwary had a complex obstetrical history: a miscarriage in 1984, a period of infertility after the birth of her first child in 1985, fertility treatment, IVF in 1993, and the stillbirth of twins at 21 weeks. Dr. Librach had provided fertility treatment to Ms. Long-Suwary in 1995 that resulted in the successful conception and delivery of her daughter Kylie in February 1996. Kylie was born by low vacuum extraction and was macrosomic, weighing 10 pounds 1 ounce. Ms. Long-Suwary had a prior child from 1985. The pregnancy with Robert was her third.

The plaintiffs named Nurse Lee, Women’s College Hospital, and Dr. Librach in the original proceedings. After the 38-day trial, the action was dismissed in full on June 19, 2009. The plaintiffs appealed. On October 31, 2011, the Court of Appeal allowed the appeal with respect to Dr. Librach (dismissing it with respect to the nurse and the hospital) on the ground that the first trial judge had made inconsistent findings of fact concerning what was said, done, and heard in the delivery room. The matter was remitted to the Superior Court for retrial on Dr. Librach’s liability only.

The Clinical Events: January 29, 1999

Ms. Long-Suwary was transported to Women’s College Hospital after midnight on January 29, 1999. She was in the first stage of labour. She was first attended by obstetrical resident Dr. Sarah Ferguson and obstetric nurse Ms. Laura Lee, and was placed in the delivery room, not the operating room.

Dr. Librach arrived in response to a page at approximately 0230. Around 0300, Ms. Long-Suwary entered the second stage of labour. She requested pain relief and received a spinal epidural. Her membranes were artificially broken. Dr. Librach’s vaginal examination showed her cervix was totally dilated, membranes were clear, and the fetal head was in the right position but presenting face up in the right occiput posterior position, a presentation that can slow descent.

Maternal and fetal heart monitors were attached to her abdomen. The fetal heart rate was communicated three ways: audibly, on a digital display, and on a paper tracing roll.

Between 0330 and 0341, the fetal heart rate showed decelerations. The number, character, duration, and clinical significance of those decelerations were the most heavily contested factual questions in the entire case.

At 0341, Dr. Librach applied a vacuum extractor. He attempted the procedure three times, unsuccessfully, over the next eight minutes. In keeping with governing guidelines recommending no more than three trials, he removed the instrument at 0349. The fetal heart rate had continued to decelerate with each pull; following the vacuum’s removal, Robert was in a state of bradycardia.

Dr. Librach moved Ms. Long-Suwary down the corridor to the operating room. At 0401, he applied forceps and achieved a mid-pelvic delivery. The fetal head was rotated so Robert could be delivered face down. At 0402, following the forceps rotation, the fetal heart rate returned to the normal range. Robert was born at 0406.

The Five Questions the Court Addressed

Whitaker J. organized the retrial around five questions: Did Dr. Librach’s care fall below accepted standards with respect to recognizing risk factors? Did Dr. Librach fail to obtain informed consent? Did the decision to proceed by vacuum-assisted delivery fall below accepted standards? If vacuum was indicated, did proceeding with it in the delivery room rather than the operating room fall below accepted standards? And if any of these breaches were established, did they cause Robert’s injuries?

Risk Factors: What Dr. Librach Knew and Did

The plaintiffs identified four alleged failures in risk assessment. All four were rejected.

On the obstetrical history, the court found it defied belief to suggest Dr. Librach was unaware of Ms. Long-Suwary’s history. He had provided her fertility treatment, delivered Kylie, and closely followed the pregnancy with Robert. He took an extensive history at the outset of their relationship and was aware of everything the plaintiffs pointed to.

On the features of Kylie’s birth, the plaintiffs argued that Kylie’s pneumothorax resulted from shoulder dystocia and that this should have alerted Dr. Librach to an elevated risk of the same complication with Robert. The court rejected the shoulder dystocia finding entirely. The absence of any notation of shoulder dystocia in Dr. Librach’s records, the nursing records, or the paediatric records made it highly unlikely it had occurred. The vacuum had achieved delivery within three minutes of application, inconsistent with difficulty such as shoulder dystocia would create. All defence experts found no evidence of shoulder dystocia-associated injuries. The plaintiffs’ expert Dr. Fruitman agreed in cross-examination that the absence of such notation strongly supported the conclusion that no dystocia had occurred. Macrosomia was not disputed as a risk factor, but all experts agreed it did not warrant a planned C-section or different delivery approach, and Ms. Long-Suwary had already successfully delivered one macrosomic baby vaginally.

On the “Risk B” notation, the court found it unnecessary to determine what level of risk designation was appropriate because all the relevant clinical information was captured in Dr. Ferguson’s admission notes regardless of how the chart was marked. The failure to annotate the chart with “Risk B”, if it was a failure, had no effect on the delivery plan.

On fetal size assessment, the court found the choice of measurement method (biparietal diameter rather than symphysis fundal height) was within the range of clinical judgment, given that all methods carry inaccuracies. Even certain knowledge of the exact fetal size would not have changed management; the experts for both sides agreed that macrosomia alone does not warrant early induction or booked C-section.

Informed Consent: General Consent and Non-Elective Procedures

Ms. Long-Suwary had signed two identical consent forms (one dated January 13, 1999 and one undated) covering “Operations or Procedures associated with Pregnancy, Labour, Delivery and the Care of my Baby.” This was her third vaginal delivery; she had signed an identical form for Kylie’s delivery and had received vacuum assistance during that delivery as well.

The plaintiffs argued that the general consent was insufficient and that specific consent for vacuum delivery in the delivery room was required, covering the nature of the procedure, expected benefits, material risks, alternatives, and consequences of not proceeding, the requirements under section 11(3) of the Health Care Consent Act, 1996.

The court rejected this argument. Vacuum-assisted delivery is not an elective procedure. It falls plainly within the general consent covering all operations and procedures associated with labour, delivery, and care of the baby. The court applied the reasoning from Kungl v Fallis and Look (Next Friend of) v Himel: a patient who consents to vaginal delivery consents to the standard methods by which that delivery may be accomplished. There is one procedure involved, vaginal delivery of the infant, and the general consent covers all means by which that is achieved. Since Ms. Long-Suwary had previously experienced vacuum-assisted delivery, she was also aware of the procedure, its purpose, and the possibility of failure. The reasoning from Goguen v Crowe regarding a patient who had previously experienced a forceps delivery was equally applicable here.

Even if specific consent was required, the court found Dr. Librach’s standard practice, which was to advise the patient of his concerns and the proposed course of action, would have been followed. In the circumstances of a non-reassuring fetal heart rate, a long discussion would not be appropriate. His brief disclosure satisfied the standard of care for an urgent situation.

Even if consent had not been obtained at all, the court found a reasonable person in Ms. Long-Suwary’s position would have consented. While Ms. Long-Suwary testified in response to a hypothetical question from her counsel that she would have requested a C-section, no expert testified that a C-section was medically indicated at that moment. A physician is not obliged to present options that are not medically indicated. The patient’s answer, that she would have chosen the safest option for her baby, did not change the outcome because the safest option for the baby, as supported by all the expert evidence, was not a C-section. Patients almost universally follow their physicians’ recommendations, particularly those with established relationships like the long doctor-patient history that had developed between Ms. Long-Suwary and Dr. Librach.

The Core Dispute: Were the Decelerations Non-Reassuring?

The central factual question was whether the fetal heart rate pattern between 0330 and 0341 provided medical indication for operative vaginal delivery. The answer depended on how many decelerations occurred, what their depth and duration were, and how they should be classified.

The parties had agreed on the following criteria. A “deep” deceleration descends to 70 beats per minute or lower. A deceleration is “complicated”, and constitutes an indication for intervention, if it: descends below 70 bpm and lasts longer than 60 seconds; returns slowly to baseline after the deceleration; or shows loss of variability in the baseline. The experts agreed that three or more deep, complicated variable decelerations are an appropriate indication for operative delivery.

The fetal heart rate was monitored three ways simultaneously: audibly, on a digital display, and on a paper tracing. There were gaps in the tracing. Nurse Lee’s notes documented difficulty picking up the fetal heart rate at 0335 and 0340. The plaintiffs argued that the contemporaneous documentation was the only reliable source of information: that the late entry notes of Dr. Librach and Nurse Lee, and the testimony of Dr. Librach and Dr. Ferguson, should be discounted or ignored because of the elapsed time since the events and the potential for hindsight contamination.

The court rejected this approach. Late entry notes, testimony of those present in the room, and the paper tracing are all legitimate sources of evidence about what occurred. The audible and visual components of the fetal heart rate monitoring were available to those present in real time but are not precisely captured in a contemporaneous record; they survive only in testimony and in late entry notes. Nurse Lee’s own notes documented two decelerations to 50 bpm, levels not seen on the paper tracing at all, confirming that significant information available in the room was not captured on paper.

After reviewing all sources (the partogram, Nurse Lee’s contemporaneous and late entry notes, Dr. Librach’s late entry records (including his Delivery Summary notation “Decels with contractions therefore vacuum applied” and his Operative Report), and the testimony of Drs. Librach, Ferguson, Oppenheimer, Davies, Lightheart, and Fruitman), the court found four deep, repetitive, complicated decelerations between 0334/0335 and 0340+.

These decelerations were “deep”: those charted in the partogram descended to 50–70 bpm; the others (78 bpm at 0336 and 74–95 bpm at 0337/0338) descended close enough to the 70 bpm benchmark that no principled clinical distinction could be drawn. The court accepted the defence experts’ evidence that clinicians do not “adhere slavishly” to precise thresholds: a deceleration to 72 bpm in the context of other decelerations below 70 bpm would still be considered clearly deep by any experienced obstetrician.

The decelerations were also “complicated.” Their duration was close to 60 seconds each, not precisely documentable because of gaps in the tracing, but reasonable extrapolation from the available tracing and testimony supported this conclusion. The defence experts also identified minimal variability in the decelerations, a finding that the court accepted as a separate indicator of fetal hypoxia and an independent reason for intervention. Loss of variability in combination with the repetitiveness of the decelerations made operative intervention medically indicated.

A subsidiary factual dispute centred on whether Dr. Librach had applied the vacuum solely because of Nurse Lee’s difficulty picking up the fetal heart rate (meaning there was no genuine indication) or because he was independently non-reassured by the FHR pattern. The court rejected the plaintiffs’ framing entirely. Dr. Librach’s own contemporaneous records stated the decelerations caused his intervention. Dr. Ferguson’s testimony was that her impression at the time was that he was responding to repetitive decelerations. Difficulty monitoring the FHR was an additional concurrent reason that added urgency, but the non-reassuring FHR pattern itself was the primary and documented indication.

The Evolving Standard: Non-Reassuring FHR vs Fetal Distress

A significant legal question in Suwary v Librach was whether the applicable standard in January 1999 required “fetal distress” as the trigger for operative vaginal delivery, or whether the newer concept of “non-reassuring fetal status” was already applicable. The SOGC Forceps Guideline (December 1995) still used the language of “fetal distress”; but the SOGC Policy Statement on Fetal Health Surveillance in Labour (March 1995) and the ALARM course materials (winter/spring 1998) had already introduced “non-reassuring fetal status” as the relevant standard for operative intervention. The shift to non-reassuring fetal status was crystallized in the 2004 SOGC guidelines.

The court accepted Dr. Librach’s position and found that the obstetrical community was already transitioning toward “non-reassuring fetal status” as the indication for operative delivery in January 1999. This shift made clinical sense: fetal distress was precisely what operative intervention was designed to prevent. If obstetricians waited until distress was confirmed before intervening, the opportunity to avert injury would often have passed. A non-reassuring FHR pattern, one indicating concern about fetal well-being before distress was established, was therefore an appropriate and medically accepted indication for operative vaginal delivery at the time of Robert’s birth.

The Scalp Clip and Intrauterine Resuscitative Measures

The plaintiffs argued that even if Dr. Librach was non-reassured, he should have applied a fetal scalp clip (electrode) to obtain continuous, direct monitoring of the fetal heart rate before resorting to the vacuum. He should also have attempted more intrauterine resuscitative measures, specifically lateral repositioning, before proceeding operatively.

The court rejected both arguments. On the scalp clip: once Dr. Librach was non-reassured by a pattern constituting an indication for operative delivery, obtaining additional information was optional not mandatory. Most significantly, even the plaintiffs’ own experts conceded in cross-examination that a scalp clip would not have provided any different information in these circumstances. Its application would have introduced unnecessary and dangerous delay in the face of a non-reassuring pattern already providing sufficient indication for intervention.

On intrauterine resuscitative measures: Dr. Librach had attempted one measure, the “wedge” position change, at 0337. It had no effect. The court accepted Dr. Davies’ evidence that IR measures are more commonly employed in the first stage of labour, where the cervix is not yet dilated and the only option is to progress toward C-section. In the second stage with full dilatation, as here, operative vaginal delivery is available and can be pursued without the preliminary step of attempting conservative measures that are unlikely to resolve the underlying issue quickly enough.

The Location Question: Delivery Room vs Operating Room

The SOGC Attendance Guidelines (2000 version, accepted as reflecting the 1999 standard) addressed this question directly. Paragraph 9 required that C-section be “immediately available” for planned delivery from the mid-pelvic cavity with forceps or vacuum, specifying that anaesthetic, obstetric, neonatal, and nursing personnel trained in C-section must be present and available in the hospital. Paragraph 10 stated that mid-cavity deliveries with forceps or vacuum “can be attempted in the delivery suite or the operating room.”

Hospital policy specifically required all forceps rotation deliveries to be in the OR, which is why Dr. Librach transferred Ms. Long-Suwary to the OR after the vacuum failed, before attempting the forceps rotation. Vacuum delivery from the mid-pelvic position was covered by paragraph 10 of the SOGC guidelines and was permitted in the delivery room.

The plaintiffs sought to invoke Ediger v Johnston, 2013 SCC 18, where the Supreme Court found a breach of the standard of care because the physician had attempted mid-level forceps rotation without ensuring surgical backup was immediately available. Whitaker J. distinguished Ediger: that case concerned mid-level forceps rotation, which carries a known risk that rotation could displace the fetal head and allow the cord to fall and become compressed. The vacuum does not carry this risk. The different risk profiles are why the SOGC guidelines treat vacuum and forceps rotation differently, requiring forceps rotation in the OR, but not imposing the same requirement on the vacuum. Dr. Librach had not disregarded a known risk. He had applied the appropriate instrument in the appropriate location under the applicable guidelines.

On the clinical judgment question, the court accepted the defence experts’ evidence that in the face of a non-reassuring fetal heart rate pattern, the objective was to achieve delivery as quickly as possible. The vacuum offered a high probability of success (89%), less maternal trauma, less need for anaesthesia, and speed. Moving Ms. Long-Suwary to the OR before attempting the vacuum would have introduced an eight-minute delay, the very delay that was incurred anyway when the vacuum failed. Dr. Librach’s decision to attempt the vacuum in the delivery room was an informed, reasonable exercise of clinical judgment supported by SOGC guidelines, hospital policy, and the expert evidence of Drs. Davies and Oppenheimer.

Causation: The Insult Preceded the Vacuum

The causation analysis in Suwary v Librach is one of the most carefully reasoned aspects of the decision, and it would have defeated the plaintiffs’ claims even had any breach been established.

The parties agreed on the general mechanism of Robert’s injury: an occult cord prolapse caused compression of the umbilical cord, which interrupted blood supply to the brain and caused an acute near total asphyxial event. Brain injury following this type of insult occurs approximately 10–15 minutes after interruption of blood supply.

The critical factual dispute was when the acute near total interruption began. The plaintiffs contended the vacuum caused the acute interruption: that before the vacuum was applied at 0341, the decelerations were recoverable and the cord was not yet critically compressed. The application of the vacuum, they argued, exerted traction on the fetal head that trapped and compressed the cord completely, converting partial compression into the acute event that injured Robert. Had the vacuum not been applied, they argued, the cord might have cleared on its own as the fetus changed position during labour.

The defence contended the acute insult had already begun by 0335, when the first deep deceleration was observed. As the fetal head descended through the birth canal, it was pushing against the cord, which was wedged between the head and the uterine wall. Each contraction pushed the head down, compressing the cord further. The deep decelerations beginning at 0335 were the observable manifestation of this progressive cord compression. The FHR returning to normal range at 0402, after the forceps rotation, confirmed this analysis: the rotation changed the position of the head relative to the cord, relieving the compression. Only head position was the cause; the vacuum itself was incidental.

The court accepted the defence theory on every point. Circulatory dysfunction began around 0335. The occult cord prolapse was already compressing the cord as the fetal head descended; this compression was already producing the deep, repetitive, complicated decelerations that caused Dr. Librach to intervene. Even plaintiffs’ expert Dr. Yaeger testified that the deep decelerations would have culminated in bradycardia in any event, whether or not the vacuum was applied. Dr. Fruitman acknowledged that the prolapsed cord was likely in position to cause damage before the vacuum was applied. Dr. Oppenheimer stated the vacuum was “somewhat incidental to the problem.”

The plaintiffs’ alternative causation theory, that even if the vacuum was incidental, Dr. Librach’s failure to transfer Ms. Long-Suwary to the OR before the vacuum attempt was responsible for delay that extended the acute insult, also failed. The insult began at approximately 0335. Three sequential steps were required before delivery could be achieved: the vacuum attempt, the transfer to the OR, and the forceps rotation. All three steps had to occur in some order. Whether the transfer occurred before or after the vacuum attempt, the total elapsed time before forceps rotation was identical. The eight-minute transfer delay was unavoidable regardless of sequence. The order of the steps could not have changed the outcome.

The court rejected with equal care the plaintiffs’ argument that the cord prolapse might have resolved spontaneously. The cord was compressed between the fetal head and the pelvis before the vacuum was applied. The progressive, worsening nature of the cord compression, inferred from the pattern of decelerations and confirmed by the FHR’s return to normal after rotation, was inconsistent with spontaneous resolution as the head descended further.

The Expert Credibility Finding

Suwary v Librach contains an important and unusually candid finding about expert credibility. Of the four experts who testified, three (Drs. Fruitman (plaintiffs), Oppenheimer (defence), and Davies (defence)) were found to have displayed the requisite level of independence. Each gave clear and convincing evidence; each fairly conceded points on cross-examination without becoming hostile or combative.

Dr. Lightheart, one of the plaintiffs’ experts, was found to be different in kind. She was “particularly argumentative and defensive on cross-examination.” A “lengthy and argumentative exchange” about SOGC guidelines was one example. Her “displayed interest in supporting the plaintiffs’ claims rendered her evidence unreliable and of little assistance.” Her assertion that the fetal heart rate could descend in five seconds, notwithstanding the demonstrated length of other decelerations, was characterized as “merely one example of her palpable desire to bolster the plaintiffs’ case.” Where her evidence was inconsistent with that of the other three experts, the court preferred the others.

This finding reinforces the principle established in Carmen Alfano Family Trust (Trustee of) v Piersanti, 2012 ONCA 297, and codified in Rule 4.1.01 of the Rules of Civil Procedure, that experts owe an independent duty to the court and must not become advocates for the party retaining them. An expert who is perceived to be advocating rather than opining will lose credibility before a careful trial judge even if the expert’s qualifications are beyond question.

What Suwary v Librach Establishes

Principle One: General Consent for Labour and Delivery Covers Standard Methods of Operative Delivery

Suwary v Librach is a significant Ontario decision confirming that a general consent form covering “operations or procedures associated with pregnancy, labour, delivery and the care of the baby” is sufficient to authorize vacuum-assisted delivery, without requiring separate specific consent to the use of the vacuum in particular. Vacuum delivery is not an elective procedure; it is a standard method of accomplishing the vaginal delivery to which consent has been given. This is consistent with the line of cases from Kungl, Goguen, and Look v Himel, now confirmed in the context of vacuum delivery.

Separately, the court recognized the practical reality of urgent obstetrical situations: where time does not permit a full discussion of options and risks, a brief disclosure of the physician’s concern and proposed course of action satisfies the standard of care for obtaining consent.

Principle Two: The Evolving Standard — Non-Reassuring FHR Was Already the Trigger for Intervention in 1999

The court’s finding that “non-reassuring fetal status” had already replaced “fetal distress” as the applicable trigger for operative vaginal delivery in January 1999, before the 2004 SOGC guidelines crystallized the language, is significant for any birth injury case involving events in the transitional period of the mid-to-late 1990s. Clinical standards evolve before they are captured in formal guidelines. A court assessing the standard of care at a particular historical moment must look at the full picture: professional guidelines in effect, draft materials and policy statements in circulation, expert testimony about community practice, and clinical educational materials. The standard of care is not simply the most recent formal guideline.

Principle Three: The Scalp Clip Is Not a Mandatory Intermediate Step Before Operative Delivery

The court’s treatment of the scalp clip question has practical significance. Where an obstetrician already has sufficient information (a pattern of deep, repetitive, complicated decelerations) to constitute an indication for operative delivery, the application of a scalp clip to obtain better information is optional not mandatory. It may be within the standard of care to proceed directly to operative delivery without the scalp clip, particularly where (as here) the available evidence supported the conclusion that the clip would not have produced different information, and its application would have introduced dangerous delay.

Principle Four: Vacuum in the Delivery Room vs the OR — SOGC Guidelines Define the Standard

The SOGC Attendance Guidelines explicitly allow mid-pelvic vacuum delivery in either the delivery suite or the operating room. Where those guidelines permit a choice, a physician’s clinical judgment about location, informed by the patient’s history, the urgency of the situation, the probability of success with the chosen instrument, and the costs of delay, is not overridden by a general risk concern. The specific risk that required forceps rotation to occur in the OR (the known risk that forceps rotation can displace the head and create cord compression) does not apply to the vacuum, as confirmed by both the expert evidence and the different treatment of the two instruments in the SOGC guidelines. Ediger v Johnston applies to mid-level forceps rotation; it does not transplant the same obligation to vacuum delivery.

Principle Five: Causation Where the Injury Preceded the Alleged Negligent Act

Suwary v Librach presents a causation analysis of unusual clarity. The acute near total cord compression that caused Robert’s brain injury had already begun at 0335, before the vacuum was applied at 0341. The decelerations beginning at 0335 were the observable evidence of this process. The vacuum did not cause the cord prolapse; it did not cause the compression; the compression was already occurring with the descent of the fetal head through the birth canal. The vacuum exerted traction on the head, as it was designed to do, but the head was already compressing the cord before the vacuum was applied.

The legal lesson is that causation requires identifying when the injury-producing event actually began. Where the harmful physiological process was already underway before the allegedly negligent act occurred, the allegedly negligent act cannot be said to have caused the harm, even if, in hindsight, a different sequence of events might theoretically have produced a different outcome. The court explicitly acknowledged this: had everyone had perfect hindsight and known the position of the cord at 0335, a theoretically ideal intervention strategy might have been crafted. But Dr. Librach’s conduct can only be evaluated on information reasonably available to him at the time. Occult cord prolapse cannot be diagnosed by physical examination. No blame attaches for failing to detect what is, by definition, undetectable.

Principle Six: Expert Independence and Advocacy

The Suwary v Librach credibility analysis is a practical illustration of what happens when expert witnesses lose their objectivity. An expert who is argumentative, who gives evidence that is transparently designed to support the retaining party’s position at every turn, and who makes assertions that defy clinical logic in order to advance a favoured theory, will lose the court’s confidence. The consequence is not merely that one disputed point is resolved against the expert’s view; it is that all of the expert’s evidence on contested points is discounted in favour of the evidence of those who remained objective. The duty of experts to the court is not rhetorical; it has real consequences at trial.

Suwary v Librach in the Birth Injury Series

This case is cited in the Birth Injury Claims Guide in this series. It is the most analytically developed Ontario case in the series on the following issues: operative vaginal delivery (vacuum vs forceps); the standard of care applicable to a specialist obstetrician (as contrasted with the family physician standard in Miller v Dow; see article in this series); the SOGC Attendance Guidelines and their function in defining where procedures may be attempted; and the causation analysis where an injury-producing physiological event precedes the allegedly negligent intervention.

Suwary v Librach pairs with Ediger v Johnston, 2013 SCC 18, which it distinguishes, on the question of when the standard of care requires surgical backup to be immediately at hand before operative vaginal delivery. It also pairs with the informed consent articles in this series (Hopp v Lepp; Reibl v Hughes) for its application of the general consent and the modified objective test in the obstetrical context.

Quick Reference: Suwary v Librach

Case Details

• Suwary v Librach, 2015 ONSC 2100 (CanLII) — https://canlii.ca/t/gh8jn | File: CV-05-291159 | Whitaker J. | Heard April–August 2014 (28 days) | Decision: April 16, 2015
• This was a RETRIAL ordered by the Court of Appeal. The original 38-day trial was dismissed June 19, 2009. The ONCA allowed the appeal with respect to Dr. Librach on October 31, 2011 for inconsistent findings of fact. The retrial on Dr. Librach’s liability only produced the same result: dismissal.
• Damages were resolved on consent prior to trial; only standard of care, breach, and causation were litigated.

The Parties

• Plaintiff: Robert Suwary (born January 29, 1999; catastrophic brain injury, an acute near total asphyxial event; severe cerebral palsy affecting entire body); Kimberly Long-Suwary (litigation guardian and plaintiff personally); Robert Edward Suwary and Katie Buchanan (family plaintiffs)
• Defendant: Dr. Clifford Librach, obstetrician at Women’s College Hospital, Toronto
• Original defendants settled/dismissed: Nurse Laura Lee; Women’s College Hospital (action against hospital and nurse dismissed at original trial and on appeal)

The Clinical Timeline

• 0230: Dr. Librach arrives at Women’s College Hospital in response to page
• ~0300: Ms. Long-Suwary enters second stage (pushing); spinal epidural; membranes artificially broken; cervix fully dilated; fetal head ROP (right occiput posterior, face up)
• 0330–0341: Four deep, repetitive, complicated fetal heart rate decelerations; the central factual dispute
• 0337: Dr. Librach attempted “wedge” intrauterine resuscitative measure; no effect
• 0341: Dr. Librach applies vacuum extractor in the delivery room
• 0341–0349: Three unsuccessful vacuum attempts; FHR decelerates with each pull; Robert enters bradycardia
• 0349: Vacuum removed; Ms. Long-Suwary transferred to OR
• 0401: Forceps applied; mid-pelvic delivery; head rotated
• 0402: FHR returns to normal range (after forceps rotation, confirming head position was causing cord compression)
• 0406: Robert born; Apgar 0; no detectable heart rate; began breathing 6 minutes post-delivery

The Cause of Robert’s Brain Injury

• Occult cord prolapse: umbilical cord fell beside the fetal head, became trapped between the head and uterine wall, subject to compression, and undetectable by physical examination
• Compression began with the first deep deceleration at ~0335, BEFORE the vacuum was applied
• Acute near total interruption of blood supply to brain caused hypoxic ischemic injury to deep brain structures
• Relief confirmed when FHR returned to normal after forceps ROTATION at 0402: rotation changed head position, relieving cord compression

Why the Action Was Dismissed

• Risk factors: All four alleged failures in risk assessment rejected. Dr. Librach was fully aware of and appropriately acted on Ms. Long-Suwary’s obstetrical history; no shoulder dystocia with Kylie; macrosomia did not require different delivery plan
• Informed consent: General consent covering all “operations or procedures associated with pregnancy, labour, delivery and the care of [the] baby” was sufficient for vacuum-assisted delivery, which is not an elective procedure; Ms. Long-Suwary had prior experience with vacuum delivery; even if specific consent required, she would have consented
• Indication for vacuum: Four deep, repetitive, complicated decelerations between 0334/0335 and 0340+ constituted non-reassuring FHR pattern providing appropriate indication for operative vaginal delivery under the 1999 standard
• No need for scalp clip: Dr. Librach already had sufficient indication; clip would not have provided different information; its application would have caused dangerous delay
• Location (delivery room): SOGC Attendance Guidelines explicitly permitted mid-pelvic vacuum delivery in delivery room; clinical judgment to attempt vacuum there was reasonable given urgency, high probability of success, and that 8-minute transfer delay would have occurred in any sequence of events
• Causation: Circulatory dysfunction began at 0335, before the vacuum was applied; vacuum was incidental to the cord prolapse; even with no vacuum attempt, the head’s descent would have compressed the cord; 8-minute transfer delay was unavoidable regardless of order of steps; same injury would have occurred

Key Legal Principles

• General consent for labour and delivery covers vacuum-assisted delivery, which is not an elective procedure and falls within the ambit of consent to vaginal delivery by any standard method
• In urgent obstetrical situations, brief disclosure of concern and proposed course of action satisfies the informed consent standard; a full discussion of all alternatives is not required and would be inappropriate
• The standard of care for operative vaginal delivery in January 1999 was non-reassuring fetal status; the shift from “fetal distress” was already under way before formal guideline revision in 2004
• Clinical judgment is not required to proceed stepwise through every possible intermediate measure (scalp clip, IR measures) before operative delivery where non-reassuring FHR already provides sufficient indication
• SOGC Attendance Guidelines defining where mid-pelvic vacuum delivery may be attempted (delivery room or OR) constitute an important source of the standard of care; Ediger v Johnston (forceps rotation risk of cord displacement) does not apply to vacuum delivery
• Causation requires establishing that the defendant’s negligence caused the injury; where the injury-producing physiological process began before the allegedly negligent act, there is no causal link
• Expert witnesses who advocate rather than opine lose credibility on all contested issues; the duty to the court under Rule 4.1.01 has real consequences at trial

Key Cases Referenced

• Ediger v Johnston, 2013 SCC 18, [2013] 2 SCR 98 — mid-level forceps rotation; surgical backup immediately required; DISTINGUISHED in Suwary v Librach for vacuum delivery
• Kungl v Fallis, [1989] OJ No 15 (HCJ); Look (Next Friend of) v Himel, [1991] OJ No 1073 (Gen Div); Goguen v Crowe, [1987] NSJ No 207 — general consent covers standard delivery methods; non-elective procedures require no additional specific consent
• Lapointe v Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 SCR 351 — courts do not settle scientific disputes; liability only where violation of universally accepted rules of medicine
• Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) — a judge’s preference for one professional opinion over another does not establish negligence where both opinions are respectable
• Snell v Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 — causation is a practical question of fact; robust and pragmatic approach to evidence
• Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 — the “but for” test for causation applied in a robust common sense fashion
• Hopp v Lepp, 1980 CanLII 14 (SCC), [1980] 2 SCR 192 — article in this series — the general duty to disclose material risks and answer specific patient questions
• Reibl v Hughes, 1980 CanLII 23 (SCC), [1980] 2 SCR 880 — article in this series — the modified objective test for informed consent causation

Related Cases in This Series

• KS v Willox, 2018 ABCA 271 — https://canlii.ca/t/htrbz — birth injury obstetric malpractice; causation by omission; action dismissed; article in this series
• Cheung v Samra, 2022 ONCA 195 — https://canlii.ca/t/jmzv5 — birth injury; IUGR; $14.9M judgment restored; article in this series
• Miller et al v Dow et al, 2017 NBQB 35 — https://canlii.ca/t/gxr6l — birth injury; fetal heart monitoring; rural family physician standard; action dismissed; article in this series
• Malinowski v Schneider, 2012 ABCA — https://canlii.ca/t/fslb9 — obstetric malpractice; duty of referring physician; article in this series
• Hopp v Lepp and Reibl v Hughes — informed consent framework in Canadian medical law; article in this series