Baum v. Malleck, 2011 SKQB 357

• Judge: Whitmore, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 29, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 357;(2011), 383 Sask.R. 229 (QB)

Baum v. Malleck (2011), 383 Sask.R. 229 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. OC.010

Melinda Baum (plaintiff) v. Naseem Malleck (defendant)

(2007 Q.B.G. No. 10; 2011 SKQB 357)

Indexed As: Baum v. Malleck

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Whitmore, J.

September 29, 2011.

Summary:

Baum sued Dr. Malleck, a gynaecologist, as a result of injuries and damages she claimed to have suffered as a result of surgery to resolve incontinence, a bladder condition. Baum complained of pain immediately after the surgery. She underwent further surgeries by urologists to remove pieces of tape that had perforated her bladder. The pain continued. Four years after the original surgery, the tape embedded in Baum's bladder and urethra was surgically removed at the Mayo Clinic in Minnesota. As a result, she was pain free.

The Saskatchewan Court of Queen's Bench found the defendant was negligent during the surgery and post-operatively. Further, in failing to use the required reasonable and ordinary care and diligence in the application of her skill, the defendant breached her contract with the plaintiff. The court awarded damages totalling $270,508.54, including pre-trial loss of leave entitlements ($48,235), pre-trial cost of health care ($13,000), subrogated claim of Saskatchewan Health ($69,453.58), and non-pecuniary damages ($125,000).

Contracts - Topic 9711

Contracts for work, materials and services - Contracts for services - Duty of performer - Doctors - The plaintiff sued the defendant gynaecologist, as a result of injuries and damages she claimed to have suffered as a result of surgery to resolve a bladder condition - The plaintiff claimed against the defendant for, inter alia, breach of contract on the basis that there was a contract between the parties in which the defendant agreed to treat the patient in a reasonable and confident manner using her best skill and judgment - The Saskatchewan Court of Queen's Bench reviewed the cases on the nature of the contractual relationship between a doctor and a patient - The court found the defendant did not use the required reasonable and ordinary care and diligence in the application of her skill - In failing to do so, the defendant breached her contract with the plaintiff - See paragraphs 212 to 316.

Damage Awards - Topic 65

Injury and death - Body injuries - Bladder or bowels - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 459

Injury and death - Special damage awards - Medical and hospital costs - The plaintiff claimed for her out-of-country medical attendances and for compensation on behalf of friends and family members who accompanied her to her appointments - She had suffered for nearly four years as a result of the defendant doctor's negligence - She found no relief in Canada despite her continuous efforts to solve her problems - By travelling to the Mayo Clinic in Minnesota she obtained relief - The Saskatchewan Court of Queen's Bench held that the trip to the Mayo Clinic was necessary and that there was no doubt she required assistance from time to time - However, the plaintiff failed to provide the court with any receipts - Instead, she relied on information from a government of Canada website - Those amounts were not appropriate - The court awarded $10,000 for those costs rather than the claimed total of some $16,000 for travel, meals, hotel and phone charges - The court also allowed the claim by the plaintiff for her mother's post-surgery care and a portion of the sum claimed for the time the plaintiff's husband took away from his business to care for her - See paragraphs 348 to 363.

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members or neighbours - [See Damage Awards - Topic 459 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The plaintiff sued the defendant as a result of injuries and damages she suffered as a result of surgery to resolve a bladder condition - Four years after the original surgery, the tape embedded in her bladder and urethra was surgically removed - As a result, she was pain free - She was a traditional housewife and the principal homemaker of her family - The Saskatchewan Court of Queen's Bench awarded $8,000 under the heading of loss of homemaking capacity - The court did not find the plaintiff's claim of $11,500 for the years of her injury to be a reasonable assessment - See paragraph 370.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - The plaintiff sued the defendant, a gynaecologist, as a result of injuries and damages she suffered as a result of surgery to resolve incontinence, a bladder condition - She complained of pain immediately after the surgery and underwent further surgeries by urologists to remove pieces of tape that had perforated her bladder - The pain continued - Four years after the original surgery, the tape embedded in her bladder and urethra was surgically removed at the Mayo Clinic in Minnesota - As a result, she was pain free - The plaintiff contended that in regard to the circumstances, non-pecuniary damages of $150,000 would be reasonable - The Saskatchewan Court of Queen's Bench awarded general damages of $125,000 - See paragraphs 367 to 369.

Damages - Topic 1416

Special damages - Loss of sick leave benefits - The plaintiff, a social worker employed with the provincial government, claimed for the loss of leave entitlements, including sick leave, vacation leave, statutory days off and time in lieu of overtime that she used to cope with the injuries she suffered caused by the defendant - The defendant argued that the plaintiff had not established that she had paid in some way for those benefits under her collective bargaining agreement or employment contract - The Saskatchewan Court of Queen's Bench held that the plaintiff should be awarded the value of her lost sick leave entitlements - She continued to be paid her salary during the time after her surgery - She had not claimed for lost earnings - In the alternative, in the event the insurance exception was applicable, the plaintiff had met the evidentiary burden of establishing that she had received those benefits as a result of contractual arrangements between her employer and her union - Further, the plaintiff's loss of sick leave benefits were a compensable asset - The court adjusted the claim by 20% because there was insufficient evidence, and allowed a claim of $32,300 - See paragraphs to 318 to 332.

Damages - Topic 1417

Special damages - Loss of overtime - The plaintiff claimed the value of the "time off in lieu of overtime" which she submitted she was forced to take in order to cope with her injuries - Her claim was slightly different than the authorities cited in that the usual claim was for loss of earnings based on a plaintiff's inability to work overtime - The Saskatchewan Court of Queen's Bench stated that the distinction was significant - "The plaintiff should be entitled to loss of benefits as a result of the injury no matter what form it takes" - In the result, the court allowed the claim but applied a contingency factor of 20% - The plaintiff might well have used some of the time for personal reasons - See paragraphs 333 to 339.

Damages - Topic 1552

General damages - General damages for personal injury - Loss of unused sick leave benefits - [See Damages - Topic 1416 ].

Damages - Topic 1552.1

General damages - Personal injuries - Loss of vacation pay (incl. vacation leave and earned days off) - The plaintiff claimed loss of vacation leave and earned days off because she used her annual and accumulated entitlements in order to take time to recover from her injuries - She had been paid out for those benefits - The Saskatchewan Court of Queen's Bench held that, "[i]n the face of the paucity of legal authority on this matter", the benefits paid to the plaintiff while she was off work as a result of her injuries were lost to her - She was not on a holiday during the time she received her holiday pay - There was therefore a loss suffered by her, being the benefit of the lost holidays - Similarly, earned days off were time that she would have taken for something other than her injuries, and was likewise a loss to her - The court applied a contingency of 20% with respect to those losses - See paragraphs 340 to 346.

Damages - Topic 1733

Deduction for payments or assistance by third parties - Contractually - From employer - Sick leave benefits - [See Damages - Topic 1416 ].

Medicine - Topic 4241.1

Liability of practitioners - Negligence - Negligence distinguished from errors in judgment - The plaintiff sued the defendant gynaecologist, as a result of injuries and damages she claimed to have suffered as a result of surgery to resolve a bladder condition - The surgical procedure was a tension-free vaginal tape or "SPARC sling" procedure - The Saskatchewan Court of Queen's Bench held that undertaking the surgery without the proper training, which the defendant's expert and the plaintiff's expert stated was necessary, did not meet the standard of care which the defendant owed to the plaintiff - "This is not a simple matter of an error in judgment" - The defendant was admittedly not experienced in the SPARC procedure and testified she did not read the instructions that came with the SPARC kit immediately prior to the surgery - That inexperience increased the risk of an occurrence of which the defendant was aware, namely perforation of the bladder - See paragraphs 240 to 247.

Medicine - Topic 4241.2

Liability of practitioners - Negligence - Causation - The plaintiff sued the defendant gynaecologist, as a result of injuries and damages she claimed to have suffered as a result of surgery to resolve a bladder condition - The surgical procedure was a tension-free vaginal tape or "SPARC sling" procedure - The plaintiff claimed that the constant pain and numerous infections which she suffered were a result of the improper placement of the tape in her bladder and urethra and, but for the defendant's negligence, the resultant injuries to her bladder and urethra and the infections would not have occurred - The Saskatchewan Court of Queen's Bench found that perforation of the bladder was a known risk of the surgical procedure and was, of itself, not negligence - There was no evidence on which the court could find that the defendant's lack of experience with the SPARC procedure contributed to the plaintiff's loss - While the negligence the court found was not the cause of the perforation of the bladder and the urethra, the defendant was negligent during the surgery and post-operatively in failing to observe or ignoring the blood in the plaintiff's discharge, thus losing the opportunity to rectify the problem at that time - The defendant's failure to observe the indicia of bladder perforation caused the plaintiff's ongoing pain - If the defendant had not failed to provide proper post-operative care the complications could have been resolved immediately by surgery - The defendant's failure to observe the patient's condition meant that the surgery was not corrected, leaving her in pain and discomfort for four years - See paragraphs 293 to 311.

Medicine - Topic 4242

Liability of practitioners - Negligence - Standard of care - [See Medicine - Topic 4241.1 ].

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4241.2 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 233].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 234].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241; 127 D.L.R.(4th) 577, refd to. [para. 235].

Cardin v. Montreal (City), [1961] S.C.R. 655; 29 D.L.R.(2d) 492, refd to. [para. 237].

McCann v. Hyndman, [2004] 2 W.W.R. 353; 336 A.R. 360; 2003 ABQB 693, refd to. [para. 270].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7, refd to. [para. 271].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Lewgood v. Cuddington et al., [2011] Sask.R. Uned. 82; 2011 SKQB 175, refd to. [para. 274].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289, refd to. [para. 294].

Scharnagl v. Stimpson et al. (2009), 351 Sask.R. 1; 2009 SKQB 474, refd to. [para. 295].

Martin v. Inglis (2002), 218 Sask.R. 1; 2002 SKQB 157, refd to. [para. 314].

Hughston v. Jost, [1943] O.W.N. 3 (H.C.), refd to. [para. 314].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1; 113 D.L.R.(4th) 1, refd to. [para. 320].

Cunningham v. Wheeler - see Cooper v. Miller (No. 1).

Shanks v. McNee - see Cooper v. Miller (No. 1).

Adam v. Johnson Estate, [1994] 8 W.W.R. 438; 121 Sask.R. 283 (Q.B.), refd to. [para. 324].

Vincent v. Abu-Bakare (2003), 259 N.B.R.(2d) 66; 681 A.P.R. 66; 2003 NBCA 42, refd to. [para. 325].

Rizzolo v. Brett, [2009] B.C.T.C. Uned. 732; 2009 BCSC 732, refd to. [para. 326].

Bjarnason v. Parks et al., [2009] B.C.T.C. Uned. 48; 2009 BCSC 48, refd to. [para. 326].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1; 53 D.L.R.(3d) 748, refd to. [para. 329].

Wood v. Grand Valley Railway Co. (1913), 30 O.L.R. 44; 16 D.L.R. 361 (C.A.), refd to. [para. 330].

Zalameda v. Pigozzo et al. (1976), 14 O.R.(2d) 716; 74 D.L.R.(3d) 522 (H.C.), refd to. [para. 333].

Cisecki v. Nipawin (Town) (2000), 192 Sask.R. 161; 2000 SKQB 119, refd to. [para. 334].

Reynoldson v. Simmons (1982), 14 Sask.R. 257 (Q.B.), refd to. [para. 344].

Patterson v. Hryciuk et al., [2004] A.R. Uned. 778; 45 Alta. L.R.(4th) 219; 2004 ABQB 934, refd to. [para. 344].

Bendel v. Danylchuk (1952), 6 W.W.R.(N.S.) 625 (Sask. Q.B.), refd to. [para. 350].

Young v. Regina District Health Board et al. (2010), 356 Sask.R. 1; 2010 SKQB 242, refd to. [para. 351].

MacKinlay v. MacEachern and Prudential Assurance Co. (1983), 58 N.S.R.(2d) 175; 123 A.P.R. 175 (T.D.), refd to. [para. 360].

Bear v. Lambos (2005), 263 Sask.R. 271; 2005 SKQB 148, refd to. [para. 362].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 367].

Olson et al. v. General Accident Assurance Co. of Canada (1998), 218 A.R. 310; 1998 ABQB 405, refd to. [para. 370].

Authors and Works Noticed:

Cooper-Stephenson, Ken, and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 186,187 [para. 361]; 512 [para. 367]; 612 [para. 321].

Meagher, Arthur Joseph, Marr, Peter J., and Meagher, Ronald Arthur, Doctors and Hospitals - Legal Duties (1991), p. 1 [para. 313].

Counsel:

Reginald A. Watson, Q.C., and Heather L. Nord, for the plaintiff;

Richard W. Elson, Q.C., and Anita G. Wandzura, for the defendant.

This action was heard before Whitmore, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment, with reasons, dated September 29, 2011.