Uribe v Tsandelis: The SOGC “Prepare for Delivery” Obligation, Causation by Omission, and Jury Verdicts in Multi-Defendant Birth Injury Cases

Elijah Uribe was born on April 29, 2010, at Grand River Hospital in the Kitchener area of Ontario. By the time he was delivered at 10:49 in the morning, he had been without adequate oxygen for too long. He suffers from severe cerebral palsy and other serious medical conditions.

The cause was a total occlusion of his umbilical cord at 10:25 a.m. The central question at trial was not whether that occlusion injured him (that was not disputed) but whether an obstetrician who responded to an earlier warning by telling the nurse to call him again if things got worse, and then stayed in his office five minutes away, had breached the standard of care that could have made all the difference.

The jury said yes. They found that the Society of Obstetricians and Gynaecologists of Canada’s 2007 guidelines required Dr. Tsandelis to prepare for delivery after a prolonged fetal heart rate deceleration at 9:57 a.m., and that his failure to do so meant the one available operating room was occupied by an elective procedure when the emergency arrived, causing the delay that condemned Elijah to a life of disability.

The Parties, the Pregnancy, and the Procedural Structure

Maria Uribe was referred to Dr. Tsandelis, an experienced obstetrician and gynaecologist, by her family physician. Dr. Tsandelis had an office five minutes from Grand River Hospital where he held privileges. Ms. Uribe’s pregnancy was considered low risk and proceeded without complication. She was admitted to the hospital on April 28, 2010 and given Cervidil to initiate labour induction. She returned to the hospital early the following morning in established labour. Saara Nyyssonen took over as her dedicated obstetrical nurse.

The plaintiffs originally brought their claim against Dr. Tsandelis, Grand River Hospital, and the nursing staff. Before trial, the claims against Grand River Hospital and the nurses were settled by way of a Pierringer Agreement, a special settlement structure that allows some defendants to resolve their liability while the case proceeds against the remaining defendants. Under a Pierringer Agreement, the settling defendants do not participate in the trial, but the non-settling defendant (here Dr. Tsandelis) may cross-claim against them. The jury is asked to apportion liability as between the non-settling defendant and the settled defendants, ensuring that the plaintiff can recover their proportionate share from each source.

At trial, the live issues were standard of care, causation, and apportionment of liability between Dr. Tsandelis and the settled defendants: Grand River Hospital and the nurses. Quantum of damages had been agreed between the parties before the trial began.

The Clinical Events: April 29, 2010

By 9:00 a.m. on April 29, 2010, labour had stopped progressing. The cervix was not dilating further. Dr. Tsandelis examined Ms. Uribe, had no specific concerns at that point, but advised her that a Caesarean section would most likely be necessary. He returned to his office five minutes away. There were two other obstetricians in the hospital that morning, including one who was on-call.

By 9:30 a.m., labour had not progressed despite the administration of oxytocin, a drug used to assist cervical dilation.

At 9:57 a.m., the baby’s fetal heart rate decelerated markedly. The nurse applied standard resuscitative measures: she increased the intravenous fluid and repositioned Ms. Uribe. The baby’s heart rate stabilized by approximately 10:02 a.m. The nurse telephoned Dr. Tsandelis to inform him of the episode. He told her to call him if there was another deceleration. He remained at his office to see one or two more patients. He had cancelled his other appointments and was planning to return to the hospital, but he did not return immediately.

At approximately 10:10 a.m., the nurse recommenced the administration of oxytocin.

Between 10:17 and 10:18 a.m., the fetal heart rate decelerated again. The nurse described this as “really bad,” with the rate falling as low as 60 beats per minute. By 10:20 a.m., the baby appeared to restabilize, and the nurse conducted a vaginal examination of Ms. Uribe and found no evidence of meconium.

At 10:20 a.m. (the same moment the nurse found the baby apparently restabilized) the patient scheduled for the 10:30 a.m. elective Caesarean section was moved into the one available operating room to begin preparation for her procedure. The other operating room had not yet been cleaned from an earlier procedure.

At 10:25 a.m., there was a total occlusion of the umbilical cord. Blood and oxygen supply to Elijah were completely cut off. The nurse found meconium on examination, confirming the crisis. She testified that she called Dr. Tsandelis immediately, knowing a crash Caesarean section was required and that “time was everything.”

At 10:27 a.m., the nurse reached Dr. Tsandelis, who was already in his car driving to the hospital. The one available operating room was occupied by the elective procedure patient. That patient now had to be moved out of the room, the room had to be prepared, and Ms. Uribe had to be brought in and anaesthetized. Ms. Uribe was in the operating room at 10:35 a.m. Dr. Tsandelis arrived at 10:40 a.m. The anaesthetist started anaesthesia at 10:40 a.m. Surgery began at 10:48 a.m. Elijah was delivered at 10:49 a.m. He had been deprived of oxygen for too long. He suffers from severe cerebral palsy and other serious medical conditions.

The SOGC Guideline at the Centre of the Case

The Society of Obstetricians and Gynaecologists of Canada 2007 Clinical Practice Guideline for Fetal Health Surveillance: Antepartum and Intrapartum Consensus Guideline was Exhibit 4 at trial. Pages S37 and S38, referred to extensively by every expert who testified, provided the standard against which Dr. Tsandelis’s conduct was measured.

The guideline addressed the response required when a prolonged fetal heart rate deceleration of more than three minutes but less than ten minutes occurs. It stated that in the presence of an abnormal fetal heart rate pattern, operative delivery should usually be undertaken promptly. For a prolonged deceleration in this range, the required action was to prepare for operative delivery (either operative vaginal delivery or Caesarean section) and to notify paediatric and anaesthetic services. The guideline specified that scalp sampling should not even be considered in the case of a prolonged deceleration of greater than three minutes; the response was to prepare for delivery.

The five-minute deceleration at 9:57 a.m. fell squarely within this category: longer than three minutes, less than ten minutes. The jury found (and the courts confirmed) that the SOGC guideline required Dr. Tsandelis to begin preparing for delivery from that moment. He did not.

The Expert Evidence

The plaintiffs called two obstetricians and a pediatric neuroradiologist. The defendant called two obstetricians.

Dr. Barrett, testifying for the plaintiffs, identified multiple failings in Dr. Tsandelis’s management. He testified that oxytocin augmentation had been inappropriate since 8:30 a.m., that the SOGC guideline required Dr. Tsandelis to return to the hospital immediately after the 10:02 call, that upon returning he should have reviewed the fetal heart rate tracings showing prior variable decelerations and the prolonged five-minute deceleration, and that he should then have proceeded to C-section without delay. On cross-examination, Dr. Barrett made the plaintiffs’ case with unusual clarity: “This is the time to do the Caesarean section and get a good outcome. It is absolutely indicated here. Again, my point is, even if you don’t do it there, you come to the hospital. You be there if you start the oxytocin. You are not in your office waiting for the disaster to happen.” He stated his opinion on causation plainly: that if Dr. Tsandelis had promptly moved at 10:07 a.m. they would have been halfway through organizing the C-section. His causation evidence was not challenged in cross-examination and was not contradicted by any defence expert.

Dr. Dan Farine, also for the plaintiffs, testified that the failure to attend and personally assess the patient after the 10:02 call fell below the standard of care. The problem, he testified, was that no-one called for a C-section because no-one had examined Ms. Uribe in a timely way. If Dr. Tsandelis had been present at the hospital, delivery would have occurred very quickly; he testified that an obstetrician can complete delivery in “one-tenth of the time” in an urgent situation if the patient is ready.

Dr. Derek Armstrong, a pediatric neuroradiologist, gave evidence on causation. His testimony was not seriously challenged. In his opinion, brain injury of the kind Elijah suffered occurs within 10 to 15 minutes of the onset of severe hypotension, which in this case occurred at 10:25 a.m. He stated that if Elijah had been delivered 10 to 15 minutes earlier, the severe damage would not have occurred. One expert set the delivery window as 8 to 12 minutes; another said 8 to 15 minutes. Either way, the timing was critical and it was agreed that delivery within the window would have avoided the severe damage.

The defence called Dr. Bernstein and Dr. Smith, both of whom testified that Dr. Tsandelis had not breached the standard of care. However, in cross-examination, Dr. Bernstein conceded the points that ultimately mattered most. He agreed that the SOGC guideline stated “prepare for delivery” and included notifying paediatric and anaesthetic services. He agreed that “usually operative delivery should be undertaken promptly” was what the guideline said. He agreed that vaginal delivery was not an option given Ms. Uribe’s presentation, and therefore “prepare promptly for C-section” was the applicable directive. He also agreed that the whole purpose of the 2007 SOGC Guideline was to prevent fetal asphyxia and that the guideline would inform his opinion on standard of care issues. Dr. Smith, in response to questions from the trial judge, confirmed that preparing for delivery (getting the paediatric and anaesthetic personnel on standby and getting the process started) could have taken place immediately after the 10:02 phone call and was within the ambit of both the ALARM document and the SOGC guideline.

Decision One: The Jury Question on Causation (2019 ONSC 6242)

Before the defence case began, the parties argued the appropriate wording for the causation question to be put to the jury. The plaintiffs wanted the jury asked whether Dr. Tsandelis’s breach of the standard of care “caused or contributed to” Elijah’s injuries. The defendant wanted the jury asked whether Elijah’s brain damage “would not have occurred without” the breach: the classic but-for formulation.

The plaintiffs relied on the Court of Appeal’s observations in Sacks v Ross, 2017 ONCA 773, where Lauwers J.A. discussed the use of “caused or contributed to” in medical malpractice cases involving multiple tortfeasors. They argued that the overlapping negligence of the various defendants could allow each to point to the other, and that “caused or contributed to” language was appropriate and more understandable for jurors in such circumstances.

The defendant relied on Surujdeo v Melady, 2017 ONCA 41, where the Court of Appeal found a trial judge had erred in approving jury questions using “a cause,” concluding this did not reflect the but-for standard. They also cited the decision in Cheung v Samra, 2018 ONSC 3480, where a trial judge had rejected the same proposed phrasing. Their position was that the existence of multiple defendants does not transform the applicable causation standard: the but-for test is the default, and the material contribution test may only be used where it is genuinely impossible to apply but-for causation.

Turnbull J. accepted the defendant’s position. The facts of the case were not so complex that the but-for test could not apply. The plaintiffs’ own theory (set out in their submissions) was expressly framed as “but for”: Elijah’s brain damage would not have occurred but for Dr. Tsandelis’s breach. The apportionment framework would handle the multi-defendant complexity; the causation standard itself remained but-for. The Sacks observations from Lauwers J.A. were obiter and were not appropriate to apply in this specific factual matrix. The jury question on causation would ask simply whether, on a balance of probabilities, Elijah would not have suffered brain damage but for the breach by Dr. Tsandelis.

The Jury’s Verdict

The jury deliberated and returned its verdict on November 1, 2019. The full content of its answers to the key questions was reproduced in the Court of Appeal decision and merits careful attention.

On standard of care, the jury found Dr. Tsandelis had breached the standard of care. In explanation, it wrote: “At the time of the first phone call from Nurse Nyyssonen the Guidelines of SOGC were not followed by Dr. Tsandelis to prepare for delivery. The SOGC Guidelines state that when there is a single abnormal intrapartum electronic fetal monitor tracing of (more than 3 less than 10) minutes, health professionals must prepare for delivery (Exhibit 4, pg. S37/38).”

On causation, the jury found that but for Dr. Tsandelis’s breach, Elijah would not have suffered brain damage. In explanation of this answer, the jury wrote: “The fact that Dr. Tsandelis didn’t follow the SOGC Guideline, ‘prepare for delivery’, contributed to [the baby’s] eventual brain damage. For example, Dr. Tsandelis didn’t initiate the birthing team &/or the O.R. at the critical time of the 1st deceleration, valuable time elapsed. If Dr. Tsandelis would have secured the O.R. prior to the elective C-section patient being moved in at 10:20, the O.R. would have been ready for Maria and [the baby] would have been delivered sooner avoiding the asphyxia altogether. The C-section could have been performed right away & there would be no need to wait on necessary support personnel because at the time of the 1st deceleration it wasn’t an urgent matter yet. The rest of the birthing team that were already booked for the elective C-section at 10:30 could have been used by any O.B. performing the C-section of Maria.”

With respect to the hospital and nurses, the jury found that Nurse Nyyssonen had also breached the standard of care (“Nurse Nyyssonen didn’t follow the SOGC guideline ‘prepare for delivery’ at the time of the 1st deceleration at 10:02 and this caused a domino effect”) and that this breach was causative of Elijah’s brain damage.

Apportionment: Dr. Tsandelis 32%, Grand River Hospital and nurses 68%.

Decision Two: The Rule 52.08 Post-Verdict Motion (2019 ONSC 7093)

After the jury was discharged, Dr. Tsandelis brought a motion under Rule 52.08(1) of the Rules of Civil Procedure seeking either dismissal of the action or a direction for retrial. Rule 52.08(1) permits such relief where the jury disagrees, makes no finding on which judgment can be granted, or gives conflicting answers so that judgment cannot be granted. Where there is no evidence on which judgment for the plaintiff could be based, the judge shall dismiss the action.

The defendant advanced two principal arguments. First, he argued that the jury’s use of “contributed to” in answering Question 2(b) revealed that it had applied the material contribution test rather than the but-for test, producing a conflict with the but-for question in 2(a), which would mean no judgment could be entered. Second, he argued there was insufficient evidence to support the findings of breach and causation, in particular because the plaintiffs had never led evidence establishing precisely what time Elijah would have been delivered if the standard of care had been met.

On the first argument, Turnbull J. rejected the submission that the jury had applied the wrong test. The jury was clearly and correctly charged on the but-for test, and the specific question in 2(a) was clearly and specifically answered YES. The jury was fully aware it was dealing with multiple defendants and that it would have to apportion liability between them. In that context, knowing it was engaged in an exercise of contributory apportionment, the use of “contributed to” in explaining the causal answer was not evidence of applying the material contribution test. The specific binary question was answered correctly; the explanatory answer was that of lay people thinking in terms of contribution in the apportionment context they were operating in. Courts cannot hold jurors to the same standard of legal precision as judges and lawyers. As Turnbull J. put it: “If the courts hold the members of a jury to the same standard of perceived legal perfection in terminology as a judge, it is questionable if the explanation for an answer given by a civil jury would ever meet the standard sought by the defendant.”

On the second argument, Turnbull J. found there was ample evidence to support the verdict. The expert evidence of Drs. Barrett and Farine established that Dr. Tsandelis should have returned to the hospital after the 10:02 call; that he would have been at the bedside by approximately 10:07; that he would have seen the second deceleration; that he could have arranged an immediate C-section before the elective patient occupied the OR at 10:20; and that delivery earlier than 10:49 a.m. was achievable. The defence expert Dr. Bernstein had conceded in cross-examination that the SOGC guideline required “prepare for delivery” on these exact facts. Dr. Armstrong’s uncontradicted evidence was that delivery within 10–15 minutes of the 10:25 occlusion would have prevented the severe damage. The jury’s own explanation articulated the precise causal mechanism it accepted. The motion was dismissed and judgment was entered.

Decision Three: The Appeal (2021 ONCA 377)

Dr. Tsandelis appealed on two grounds: that the jury had not applied the but-for causation test, and that the trial judge had improperly questioned witnesses, thereby introducing a new theory of liability. The Court of Appeal, in reasons delivered by Benotto J.A. (Miller and Trotter JJ.A. concurring), dismissed the appeal.

The Causation Test Argument

The ONCA addressed the argument that the jury’s use of “contributed to” in their explanation of the causation answer meant they had applied the material contribution test rather than but-for.

Benotto J.A. rejected this submission, and went beyond the trial judge’s reasoning to address the broader legal point: even in the but-for context, the word “contributed” arises naturally in multi-defendant cases and does not signal a different causation test. The court relied on its own decision in Donleavy v Ultramar Ltd, 2019 ONCA 687, at paragraph 72, which explained that causation is made out under the but-for test if the defendant’s negligence “caused the whole of the plaintiff’s injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained.” The Negligence Act uses “caused or contributed” language; the phrase appears in numerous Supreme Court decisions. When a jury is required to find both causation and to apportion liability between multiple tortfeasors, it is entirely natural that they would express their causal findings using language of contribution. That language reflects the multi-defendant reality, not a departure from the but-for test.

The ONCA also noted that the jury’s full answer to Question 2(b) made the but-for analysis explicit: “If Dr. Tsandelis would have secured the O.R. prior to the elective C-section patient being moved in at 10:20, the O.R. would have been ready for Maria and [the baby] would have been delivered sooner avoiding the asphyxia altogether.” This is but-for causation expressed in the lay language of the jury room. There is no ambiguity about what the jury found.

The Reasonableness of the Verdict

The appellant argued that the verdict was unreasonable because there was no evidence establishing exactly when Elijah would have been delivered if the standard of care had been met: that general statements about delivery happening “earlier” or “sooner” did not satisfy causation requirements. The defendant relied on Salter v Hirst, 2011 ONCA 609, where the Court of Appeal had found that while the doctor was negligent in failing to transfer the patient for better diagnostic testing, there was no expert evidence that the delay had caused the patient’s paraplegia.

Benotto J.A. distinguished Salter. In that case, there was no evidence at all connecting the delay to the harm. Here, there was direct evidence from which the jury could conclude that the Caesarean section would have been performed before the damage occurred. Dr. Barrett had testified that if Dr. Tsandelis had returned to the hospital at 10:07, he would have seen the fetal heart rate tracing, examined the patient, and called for immediate C-section, and Dr. Barrett believed there was an anaesthetist and an operating room available at that time. Dr. Farine testified that if Dr. Tsandelis had been present, delivery would have occurred very quickly. The uncontradicted evidence of Dr. Armstrong established that delivery within 10–15 minutes of the 10:25 occlusion would have prevented serious damage. The ONCA explicitly accepted the timing logic: had Dr. Tsandelis returned to the hospital at 10:07, he would have been there for the second deceleration at 10:17–10:18; he could have called for immediate C-section at that point; the OR would have been available because the elective patient was not moved in until 10:20; and delivery within the protective window would have been achievable. The jury’s conclusion was not unreasonable; it was supported by evidence and logical inference drawn from that evidence.

The Trial Judge’s Questions to Witnesses

The ONCA reviewed the trial judge’s questions to three witnesses (Nurse Nyyssonen, Dr. Farine, and Dr. Smith), in each case asked at the conclusion of the witness’s testimony, after which counsel were invited to ask further questions arising from the judge’s.

The questions were brief, targeted, and factual in character. Of Nurse Nyyssonen: whether she had expressed urgency to Dr. Tsandelis when she called him, and whether Dr. Tsandelis had directed that the on-call obstetrician perform the C-section (he had not). Of Dr. Farine: whether Dr. Tsandelis could have directed the crash C-section to be performed by the on-call obstetrician at 10:25 when he was still in his car (yes, absolutely; he should have said “I’m on my way, but somebody else can start it”). Of Dr. Smith: whether preparations for delivery could have commenced immediately after the 10:02 phone call and whether that was within the ambit of the SOGC guideline (yes).

The ONCA found the questions were not improper. A trial judge is entitled to ask questions for clarification, provided they wait until the end of testimony, ask on a narrow issue, and allow further examination. The protocol from R v Stuckey, 2009 ONCA 151 was followed. More fundamentally, the appellant’s premise was wrong: the questions did not introduce a new theory. The SOGC guideline obligation to “prepare for delivery” was squarely in issue throughout the trial; it was front and centre in the expert evidence of every witness. The trial judge’s questions explored matters that were already fully in play. Experienced trial counsel raised no contemporaneous objection.

What Uribe v Tsandelis Establishes

Principle One: The SOGC “Prepare for Delivery” Obligation Has Real Operational Content

Uribe v Tsandelis gives concrete operational meaning to the SOGC 2007 guideline requiring healthcare professionals to “prepare for delivery” in response to a prolonged fetal heart rate deceleration of more than three minutes. “Prepare for delivery” is not a passive acknowledgement of risk. It means, at minimum: initiating preparations for operative delivery, notifying paediatric services, notifying anaesthetic services, and securing operating room access. An obstetrician who responds to such a deceleration by telling the nurse to “call again if it happens again” and remaining in an office five minutes away, without doing any of these things, has breached the standard that the guideline establishes.

This has significant implications for how obstetricians respond to first prolonged decelerations. The guideline does not make delivery mandatory at that moment; Dr. Barrett himself acknowledged that a stat C-section was not required at 10:02. What was required was preparation: getting the team on standby, securing the OR, ensuring the necessary infrastructure was in place so that if the situation deteriorated, the response could be immediate. The breach in Uribe v Tsandelis was not the failure to perform the C-section at 10:02. It was the failure to begin preparing for it at that point, which meant, when the crisis came at 10:25, everything had to be started from scratch.

Principle Two: Causation by Omission Where the Harm Is Structural

The causation in Uribe v Tsandelis follows a distinctive structural logic. The harm did not occur because Dr. Tsandelis did something to injure Elijah. It occurred because his failure to prepare for delivery created a structural bottleneck (an OR that was no longer available when the crisis arrived) that prevented timely intervention. This is causation by omission operating through an institutional mechanism: the failure to reserve a resource meant the resource was taken by something else, and when the resource was urgently needed it was no longer available.

The jury’s articulation of the causal chain was remarkably precise for lay people. They identified the specific mechanism: had the OR been secured before the elective patient was moved in at 10:20, it would have been available when the emergency arose at 10:25; the elective team could have been redirected to perform the crash C-section; delivery could have occurred within the protective window. This is what the SOGC guideline was designed to prevent, not just by getting the obstetrician to the bedside, but by ensuring the institutional infrastructure for rapid delivery was activated when the warning signs appeared.

Principle Three: “Contributed To” Language in Multi-Defendant Causation Does Not Signal the Wrong Test

The ONCA’s resolution of the causation language dispute in Uribe v Tsandelis is important guidance for birth injury and medical malpractice cases involving multiple defendants. When a jury is asked to determine both causation and apportionment between multiple tortfeasors, it is natural and appropriate for contribution language to appear in the explanatory answers. The but-for test was correctly applied if the jury’s binary causation question was answered correctly (YES) and if the explanatory answer reveals a but-for causal chain. The word “contributed” in the explanatory answer, in a multi-defendant apportionment context, does not mean the jury applied the material contribution test instead of but-for causation.

This is reinforced by Donleavy v Ultramar Ltd, 2019 ONCA 687, and by the language of the Negligence Act itself. Even within but-for causation, where a defendant’s negligence is “a necessary cause” of the injury and there are other contributing causes (from other tortfeasors), “contribution” language will appear naturally. The court reading a jury’s answer should not apply the same technical precision as if reading a judicial decision.

Principle Four: Jury Verdicts in Medical Malpractice Require an Exceptionally High Threshold to Overturn

Both the trial judge on the Rule 52.08 motion and the Court of Appeal in dismissing the appeal reinforced the well-established principle that civil jury verdicts are entitled to a fair and liberal interpretation. Answers should be given the fullest possible effect and supported if possible by any reasonable construction. A verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at it. Where there is evidence (including reasonable inferences from accepted evidence) capable of supporting the verdict, the threshold for intervention is not met.

In Uribe v Tsandelis, the jury’s verdict was both supported by direct expert evidence and grounded in common sense inferences available on that evidence. The defence’s argument that causation required exact expert evidence of the precise minute of delivery was rejected: the combination of Dr. Barrett’s testimony, Dr. Farine’s testimony, Dr. Armstrong’s uncontradicted evidence on the 10–15 minute window, and the uncontested timeline of OR availability provided an evidentiary foundation that supported the jury’s conclusion.

Principle Five: The Pierringer Agreement Framework and Apportionment in Partially-Settled Cases

Uribe v Tsandelis is an important illustration of how Pierringer Agreements operate in multi-defendant medical malpractice cases. When some defendants settle before trial while the case continues against others, the structure of the trial adapts: the settling defendants are not present, but the non-settling defendant may cross-claim against them, and the jury apportions liability as between the non-settling defendant and the settled group. In Uribe v Tsandelis, the 32%/68% apportionment meant that Dr. Tsandelis was responsible for 32% of the agreed damages, with the hospital and nurses’ 68% covered by the Pierringer settlement.

This framework allowed the jury to reach a nuanced conclusion: both the obstetrician and the nursing/hospital team had failed to prepare for delivery as the SOGC guideline required, both failures contributed to the causal chain, and responsibility could be allocated between them in proportion to their respective roles. The jury’s explanation of the hospital/nursing breach (“Nurse Nyyssonen didn’t follow the SOGC guideline ‘prepare for delivery’ at the time of the 1st deceleration at 10:02 and this caused a domino effect”) and their assignment of 68% liability to that group reflects the jury’s assessment that the nursing and institutional failures, once the crisis arrived, accounted for the larger share of responsibility.

Uribe v Tsandelis as the Conclusion of the Birth Injury Series

Uribe v Tsandelis is the final case in the Acuity Medical Law birth injury and obstetric malpractice series. Taken together, the cases in this series trace the full spectrum of birth injury litigation in Canada: cases dismissed at standard of care (KS v Willox, Miller v Dow, Suwary v Librach); cases dismissed at causation (Wilton v Genik, Deboer v Kolyn (dismissed on damages proportions after breach found); cases where the plaintiff succeeded (Cheung v Samra with its $14.9 million verdict, Uribe v Tsandelis with its jury verdict and 32%/68% apportionment); and procedural cases that shaped the litigation framework without reaching the merits (Khan v Lee on pleadings requirements).

Uribe v Tsandelis adds a dimension the other cases in the series do not address: the SOGC obligation to prepare for delivery, not just to respond to a crisis when it arrives, but to ensure the institutional infrastructure for a rapid response is activated when the first warning appears. The nine minutes between the first deceleration resolving at 10:02 and the elective C-section patient entering the OR at 10:20 represented the window in which the standard of care required action. The failure to act in that window was what the jury found, and what three courts confirmed, made the difference.

Quick Reference: Uribe v Tsandelis

The Three Decisions

• Jury question motion: 2019 ONSC 6242 — https://canlii.ca/t/j34zj | Turnbull J. | October 29, 2019 | “But for” test applies; “caused or contributed to” not required in this factual matrix
• Post-verdict Rule 52.08 motion: 2019 ONSC 7093 — https://canlii.ca/t/j48pv | Turnbull J. | December 6, 2019 | Motion dismissed; judgment entered per jury verdict
• Appeal: 2021 ONCA 377 — https://canlii.ca/t/jg7mt | Benotto, Miller and Trotter JJ.A. | June 3, 2021 | Appeal dismissed; costs $20,000 to respondents

The Parties

• Plaintiff: Elijah Richardo Uribe (minor), Maria Angelica E. Uribe (litigation guardian and plaintiff personally), Ricardo Adolfo Uribe
• Defendant at trial: Dr. Nickoli Tsandelis — obstetrician and gynaecologist, Grand River Hospital, Kitchener area
• Settled defendants (Pierringer Agreement, did not participate in trial): Grand River Hospital, Saara Nyyssonen (dedicated obstetrical nurse) and other nursing staff

The Clinical Timeline (April 29, 2010)

• By 9:00am: Dr. Tsandelis examines Ms. Uribe; no specific concerns; advises probable C-section; returns to office 5 minutes away
• 9:30am: Labour not progressed despite oxytocin
• 9:57am: First prolonged fetal heart rate deceleration (~5 minutes)
• ~10:02am: Nurse calls Dr. Tsandelis after heart rate stabilizes; he tells her to call if another deceleration occurs; remains in office
• 10:10am: Nurse recommences oxytocin
• 10:17-10:18am: Second deceleration — falls to 60 bpm; “really bad”
• 10:20am: Baby restabilizes; nurse examines — no meconium; ELECTIVE C-SECTION PATIENT MOVED INTO ONLY AVAILABLE OR at this moment
• 10:25am: TOTAL CORD OCCLUSION — blood and oxygen supply to Elijah completely cut off; meconium found; nurse calls Dr. Tsandelis — he is already in his car
• 10:35am: Ms. Uribe in OR (elective patient had to be moved; room prepared)
• 10:40am: Dr. Tsandelis arrives; anaesthesia begins
• 10:48am: Surgery begins; 10:49am: Elijah delivered
• Result: Severe cerebral palsy from oxygen deprivation

The SOGC Guideline (Exhibit 4, pp. S37-38)

• A prolonged fetal heart rate deceleration of more than 3 minutes and less than 10 minutes requires health professionals to “prepare for delivery”
• “Prepare for delivery” means: preparing for operative delivery (operative vaginal delivery or C-section) AND notifying paediatric and anaesthetic services
• Scalp sampling should not be considered in the case of a prolonged deceleration greater than 3 minutes; the response is to prepare for delivery
• The 9:57am deceleration (lasting ~5 minutes) fell squarely within this category
• Dr. Tsandelis did not follow this guideline after the 10:02am phone call

The Jury’s Verdict (November 1, 2019)

• Standard of care: Breach FOUND — “the Guidelines of SOGC were not followed by Dr. Tsandelis to prepare for delivery”
• Causation: YES, but for the breach, Elijah would not have suffered brain damage — “If Dr. Tsandelis would have secured the O.R. prior to the elective C-section patient being moved in at 10:20, the O.R. would have been ready for Maria and [the baby] would have been delivered sooner avoiding the asphyxia altogether”
• Apportionment: Dr. Tsandelis 32% / Grand River Hospital and nurses 68%
• Jury polled — unanimous

Key Legal Principles

• The SOGC “prepare for delivery” guideline is an obligation with specific operational content; it requires securing the OR, notifying anaesthetic and paediatric services, and initiating the infrastructure for rapid delivery, not merely monitoring and waiting
• In a multi-defendant case governed by a Pierringer Agreement, the but-for test remains the appropriate causation standard even where apportionment between the defendant and the settled defendants is required
• When a jury answers a binary but-for causation question YES and then explains using “contributed to” language in the context of apportionment between multiple tortfeasors, the use of “contributed” does not mean the jury applied the material contribution test; in a multi-defendant apportionment context, contributory language is natural and consistent with but-for reasoning (citing Donleavy v Ultramar Ltd, 2019 ONCA 687)
• A civil jury verdict will only be set aside on the very high threshold of being so plainly unreasonable that no jury acting judicially could have arrived at it; where there is evidence and available inference supporting the conclusion, the threshold is not met
• Causation by omission can operate through an institutional mechanism: failure to prepare for delivery (failure to secure the OR) can be the but-for cause of harm when that failure means critical infrastructure is unavailable at the moment of emergency
• A trial judge may ask witnesses questions for clarification at the end of their testimony, on matters already in issue, with counsel given opportunity to follow up; this is permissible intervention and does not constitute the introduction of a new theory of liability
• Expert evidence of “earlier delivery” is sufficient causation evidence where the timing evidence, the mechanism of injury, and available inferences from the institutional facts support the conclusion; precise expert testimony about the exact minute of delivery is not required

Key Cases Referenced

• Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 — the but-for test for causation; material contribution only where but-for is impossible; articles on causation in this series
• Donleavy v Ultramar Ltd, 2019 ONCA 687 — “contributed to” language in but-for multi-defendant context does not signal wrong test
• Sacks v Ross, 2017 ONCA 773 — “caused or contributed to” in multi-tortfeasor medical malpractice cases (obiter per Lauwers J.A.); not applicable on these facts
• Surujdeo v Melady, 2017 ONCA 41 — error to use “a cause” in jury question; but-for standard not captured
• Salter v Hirst, 2011 ONCA 609 — no causation evidence linking delay to harm; distinguished in Uribe because direct causal chain was established
• Stilwell v World Kitchens, 2014 ONCA 770 — civil jury verdict standard of review; set aside only if so plainly unreasonable no jury acting judicially could have reached it; full and liberal interpretation of jury answers
• R v Stuckey, 2009 ONCA 151 — protocol for trial judge questions: end of testimony, narrow issue, opportunity for follow-up

Related Cases in This Series

• Cheung v Samra, 2022 ONCA 195 — https://canlii.ca/t/jmzv5 — birth injury; IUGR; failure to advance delivery; $14.9M verdict restored; article in this series
• KS v Willox, 2018 ABCA 271 — https://canlii.ca/t/htrbz — birth injury; obstetric malpractice; causation failed; action dismissed; article in this series
• Suwary v Librach, 2015 ONSC 2100 — https://canlii.ca/t/gh8jn — occult cord prolapse; vacuum delivery; causation preceded the intervention; action dismissed; article in this series
• Miller et al v Dow et al, 2017 NBQB 35 — https://canlii.ca/t/gxr6l — birth injury; rural hospital; fetal monitoring; action dismissed; article in this series
• Snell v Farrell and Clements v Clements — causation framework in Canadian negligence law; articles in this series