Bear v. Lambos, (2005) 263 Sask.R. 271 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 28, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 263 Sask.R. 271 (QB);2005 SKQB 148

Bear v. Lambos (2005), 263 Sask.R. 271 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. AP.039

Asini Cree Philip Bear, a minor suing by his Litigation Guardians, Joseph and Shona Bear (plaintiff) v. Dr. P. Lambos (defendant)

(2001 Q.B.G. No. 551; 2005 SKQB 148)

Indexed As: Bear v. Lambos

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Baynton, J.

March 28, 2005.

Summary:

It was suspected that the plaintiff's mother had gestational diabetes. Immediately after the plaintiff's birth, the defendant pediatrician began to treat him for hypoglycemia. The defendant chose to use a continuous steady intravenous infusion of glucose over a lengthy period of time and a series of glucose boluses (the accelerated infusion of glucose by pushes over a short period of time). The plaintiff's right foot was the intravenous site. The intravenous went interstitial (the fluid was no longer going into the vein, but into the surrounding tissue). The plaintiff suffered a serious burn to his right foot, which required skin graft surgery to repair. The plaintiff sued the defendant for damages, alleging that her treatment of him was negligent.

The Saskatchewan Court of Queen's Bench found that the defendant was negligent in her treatment of the plaintiff and that her negligence caused the damage suffered by the plaintiff. The court awarded the plaintiff general damages of $12,000 and special damages of $1,170.

Damage Awards - Topic 306

Injury and death - Burns - Foot - Immediately after the plaintiff's birth, the defendant pediatrician treated him for hypoglycemia by introducing glucose into his system by an intravenous infusion into his right foot - The intravenous went interstitial (the fluid went into the surrounding tissue rather than in the vein) - As a result, the plaintiff suffered a burn to a large area of his foot that was severe enough to destroy tissue - Skin graft surgery successfully repaired the injury and left the plaintiff with no permanent disability other than some scarring - The Saskatchewan Court of Queen's Bench assessed the plaintiff's nonpecuniary damages at $12,000 - See paragraphs 79 to 82.

Damage Awards - Topic 634

Torts - Injury to the person - Medical or dental malpractice - [See Damage Awards - Topic 306 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The Saskatchewan Court of Queen's Bench stated that the onus of proof of causation in medical malpractice actions remained on the plaintiff throughout and that in certain cases causation could be proven by inference even in the absence of positive or scientific proof of causation - However, such an inference could be rebutted by evidence to the contrary adduced by the defendant - Trial courts were to take a "robust and pragmatic" approach to the facts in such cases as described in Snell v. Farrell (S.C.C.) - The application of that approach should be given more significance in cases where the plaintiff was not in as good a position to produce evidence of causation as was the defendant to contradict such evidence - If on the other hand the defendant was in no better position to contradict the plaintiff's evidence of causation than was the plaintiff to produce it, the court should give less significance to the application of the robust and pragmatic approach - See paragraphs 44 to 46.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The Saskatchewan Court of Queen's Bench stated that a pediatrician was not called to as high a standard of care of a seriously ill infant as was a neonatal specialist - However, a pediatrician was called to a higher standard of care of such an infant than was a general practitioner - See paragraph 68.

Medicine - Topic 4243.2

Liability of practitioners - Negligence or fault - Doctor's duty to consult other doctors - [See Medicine - Topic 4244.1 ].

Medicine - Topic 4244.1

Liability of practitioners - Negligence or fault - Intravenous - It was suspected that the plaintiff's mother had gestational diabetes - Immediately after the plaintiff's birth, the defendant pediatrician began to treat him for hypoglycaemia - The defendant chose to use a continuous steady intravenous infusion of glucose over a lengthy period of time and a series of glucose boluses (the accelerated infusion of glucose by pushes over a short period of time) - The plaintiff's right foot was the intravenous site - The intravenous went interstitial (the fluid was no longer going into the vein, but into the surrounding tissue) - The plaintiff suffered a serious burn to his right foot - The Saskatchewan Court of Queen's Bench found that the defendant was negligent: (1) in using boluses to the extent that she did; (2) in using aggressive hypertonic solutions in many of those boluses; (3) in taking no special precautions to address the increased risk that the intravenous would go interstitial due to the extensive use of boluses and due to the use of aggressive hypertonic doses; and (4) in taking no special precautions to address the increased risk that if the intravenous went interstitial, the tissue damage would likely be more serious than in the usual case of an interstitial intravenous - The defendant had an obligation, when prescribing the type of aggressive treatment that she did, to instruct the nursing staff on the increased risk of tissue damage and on what should be done to minimize that risk - The defendant also should have consulted with someone with more experience when she could see that the aggressive treatment that she prescribed was not working - See paragraphs 53 to 70.

Cases Noticed:

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 37].

Wilson v. Swanson, [1956] S.C.R. 804; 5 D.L.R.(2d) 113, refd to. [para. 38].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 38].

McCormick v. Marcotte, [1972] S.C.R. 18, refd to. [para. 38].

ter Neuzen v. Korn - see Neuzen v. Korn.

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. 38].

Cardin v. Montreal (City) (1961), 29 D.L.R.(2d) 492 (S.C.C.), refd to. [para. 41].

Gent v. Wilson (1956), 2 D.L.R.(2d) 160 (Ont. C.A.), refd to. [para. 42].

Fairley v. Waterman et al., [2002] B.C.T.C. 10; 2002 BCSC 10, refd to. [para. 42].

Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 (H.L.), refd to. [para. 43].

Clinton v. Regina District Health Board and Gellner (1998), 171 Sask.R. 44 (Q.B.), refd to. [para. 43].

Quintal v. Datta and Skochylas, [1988] 6 W.W.R. 481; 68 Sask.R. 104 (C.A.), refd to. [para. 43].

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. 44].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161; 78 D.L.R.(4th) 609, refd to. [para. 44].

Crawford v. Penny et al., [2003] O.T.C. 16; 14 C.C.L.T.(3d) 60 (Sup. Ct.), refd to. [para. 47].

Scott v. Mohan - see Crick v. Mohan.

Crick v. Mohan (1993), 142 A.R. 281 (Q.B.), refd to. [para. 47].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235, refd to. [para. 49].

Arnold v. Bonnell and Dr. Everett Chalmers Hospital (1984), 55 N.B.R.(2d) 385; 144 A.P.R. 385 (T.D.), refd to. [para. 50].

Fontaine v. Loewen Estate, [1998] 1 S.C.R. 424; 223 N.R. 161; 103 B.C.A.C. 118; 169 W.A.C. 118; 156 D.L.R.(4th) 577, refd to. [para. 50].

Nemetchek v. University Hospitals Board et al. (2000), 265 A.R. 264; 2000 ABQB 367, refd to. [para. 50].

Andrews et al. v. Grand & 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. 52].

Bunce v. Flick et al., [1991] 5 W.W.R. 623; 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), refd to. [para. 52].

Turnbull v. Hsieh (1990), 108 N.B.R.(2d) 33; 269 A.P.R. 33 (C.A.), refd to. [para. 83].

Crocker v. Awan (2002), 205 N.S.R.(2d) 153; 643 A.P.R. 153; 2002 NSSC 136, refd to. [para. 83].

Parent v. Andrews et al. (2001), 206 Sask.R. 256; 2001 SKQB 266, refd to. [para. 84].

Pare v. Halldorson, [1997] 2 W.W.R. 321; 150 Sask.R. 96 (Q.B.), refd to. [para. 84].

Counsel:

Gregory J. Curtis, for the plaintiff;

Richard W. Elson, for the defendant.

This action was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on March 28, 2005.