The Supreme Court of Canada has left an anesthesiologist solely liable for the severe, permanent brain injuries Sophia Hemmings suffered following an emergency caesarean section, while dividing over whether her obstetrician should also be liable.
In Hemmings v. Padmore, 2026 SCC 34, released October 23, 2026, the court dismissed both appeals from an Ontario decision. Hemmings and her family lost their bid to restore liability against obstetrician Lloyd Gregory Padmore by a 4-3 vote. All seven judges rejected their appeal concerning Scarborough Health Network, formerly Scarborough Hospital. Anesthesiologist Neil Thomas Jamensky lost his appeal 6-1.
The voting does not translate into a majority finding that the harm was too remote from Padmore's negligence. Four judges reached the opposite conclusion. Chief Justice Wagner nevertheless voted to dismiss the claim because he considered the trial judge's factual causation analysis legally flawed.
A high risk pregnancy and an emergency delivery
Hemmings initially visited Padmore in 2008 seeking contraception, unaware she was pregnant. He did not order a pregnancy test until her fourth visit. Her obesity increased the risks associated with pregnancy, but he did not advise her about those risks or the option of abortion, or properly document the risks and a management plan.
In 2009, after labour stalled, an emergency caesarean section began under regional anesthesia. Hemmings became panicked. Jamensky converted her to general anesthesia, after which she suffered a cardiac arrest. Insufficient oxygen to her brain caused lasting injury.
The trial judge found Padmore, Jamensky and the hospital liable, but the Ontario Court of Appeal overturned the findings against Padmore and the hospital. The damages amount had been agreed before trial; the litigation concerned liability.
Causation and remoteness require separate answers
Despite their disagreement on the result, the judges emphasized that factual causation and remoteness must remain distinct. They favoured the term remoteness over legal causation, which can obscure that distinction.
Factual causation generally requires plaintiffs to prove, on a balance of probabilities, that their injury would not have occurred but for the defendant's negligent act. That act must be a necessary cause, not necessarily the only cause. Scientific certainty is unnecessary, but a plausible account alone does not discharge the burden.
Remoteness asks whether the injury was a reasonably foreseeable consequence of the negligence. The assessment considers the defendant's position when the breach occurred, including the knowledge expected of a reasonable practitioner. A real risk is required, rather than a mere possibility, although the precise sequence producing the injury need not have been foreseeable.
Factual causation findings attract deference absent palpable and overriding error. Remoteness is a question of mixed fact and law, also attracting deference unless there is such an error or an extricable legal error. Failing to undertake a counterfactual analysis necessary to apply the but-for test is an error of law.
Different reasons for rejecting the obstetrician claim
Justices Rowe and O'Bonsawin, joined by Justice Jamal, concluded that Hemmings' injuries were too remote from Padmore's negligence.
They identified an unresolved inconsistency with the trial judge's finding that the obstetrician who performed the delivery, Sharon O'Brien, could not reasonably have foreseen the injuries. O'Brien had more information about Hemmings' condition than Padmore had when his relevant breaches occurred. The dismissal of the claim against O'Brien was not appealed.
The three judges also considered the evidence insufficient to establish a real risk of anesthetic complications foreseeable to Padmore from his position. A general possibility of physical injury was too broad a basis for liability.
Justice Martin, joined by Justices Karakatsanis and Moreau, would have restored Padmore's liability. She considered the trial judge's conclusion that Hemmings would have terminated the pregnancy if properly advised supportable on the evidence.
On remoteness, Martin focused on the pregnancy-related risks that made Padmore's non-disclosure negligent. Anesthetic complications and cardiac arrest fell within those risks. She rejected treating O'Brien's different role and alleged breach as dictating Padmore's liability.
Wagner agreed the injuries were not too remote from Padmore's conduct. But he found the trial judge had improperly used the remoteness language of a possibility not being far-fetched to establish factual causation. That could not substitute for finding, on a balance of probabilities, that Hemmings would have ended the pregnancy if properly advised.
The hospital's success was unanimous, although the reasoning differed. The trial judge had not adequately determined whether proper advice from a nurse who spoke to Hemmings before delivery would actually have prevented the injuries. The nurse had failed to review her antenatal records before advising her. Finding that earlier assessment would have led to induction or an urgent caesarean did not establish that the eventual complications would have been avoided.
Premature conversion to general anesthesia
Six judges upheld Jamensky's liability for converting to general anesthesia before exhausting reasonable alternatives to calm Hemmings. General anesthesia itself was not the negligent act.
The trial judge found that Jamensky had not waited for the sedative's peak effect or given Hemmings' sister an adequate opportunity to reassure her. There was no fetal distress or other need to proceed quickly. Although the Court of Appeal set aside a separate finding of negligent intubation, that did not defeat liability for the premature conversion.
The six judges accepted that the trial reasons, read in context and against the record, sufficiently supported the conclusion that further calming measures would probably have worked. An explicit counterfactual analysis was unnecessary here because the evidence and findings made that reasoning apparent.
Wagner disagreed. In his view, establishing that general anesthesia caused the cardiac arrest did not establish that the failure to exhaust alternatives caused it. The judge needed to determine whether general anesthesia would still have been necessary after reasonable calming efforts. Wagner would have allowed Jamensky's appeal, but left undecided whether a new trial would have been appropriate.
The outcome preserves Jamensky's sole liability while underscoring the need to connect the particular breach of the standard of care to the injury, separately from deciding whether that injury was too remote. Each party must bear its own costs of the Supreme Court appeals.
